exhibit45sixthamendmenta






EXECUTION VERSION  SIXTH AMENDMENT AND RESTATEMENT AGREEMENT  relating to a Revolving Credit Facility Agreement originally dated 22 December 2010, as amended and  restated on 6 May 2014, 28 October 2016, 12 June 2017, 22 March 2018 and 30 November 2018  between  GOLD FIELDS GHANA LIMITED  and  ABOSSO GOLDFIELDS LIMITED  and  THE STANDARD BANK OF SOUTH AFRICA LIMITED (ACTING THROUGH ITS ISLE OF MAN  BRANCH)  and  THE STANDARD BANK OF SOUTH AFRICA LIMITED (ACTING THROUGH ITS CORPORATE AND  INVESTMENT BANKING DIVISION)   #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 3  Execution Version      Amendment and Restatement Agreement) pursuant to an amendment and restatement  agreement dated 22 March 2018 (the "Fourth Amendment and Restatement Agreement").  (E) The Borrowers, the Original Lender and the Agent agreed to amend and restate the terms of  the Original Facility Agreement (as amended by the First Amendment and Restatement  Agreement, the Second Amendment and Restatement Agreement, the Third Amendment and  Restatement Agreement and the Fourth Amendment and Restatement Agreement) pursuant  to an amendment and restatement agreement dated 23 November 2018 (the "Fifth  Amendment and Restatement Agreement").  (F) The Original Facility Agreement as amended and restated by the First Amendment and  Restatement Agreement, the Second Amendment and Restatement Agreement, the Third  Amendment and Restatement Agreement, the Fourth Amendment and Restatement  Agreement and the Fifth Amendment and Restatement Agreement is hereinafter referred to as  the "Facility Agreement".  (G) The Parties agree to amend and restate the Facility Agreement as set out in this Agreement.  IT IS AGREED AS FOLLOWS:  1. DEFINITIONS AND INTERPRETATION  1.1. Definitions  Terms defined in the Facility Agreement shall have the same meaning when used in  this Agreement, unless defined below. In addition, the definitions below apply in this  Agreement.  1.1.1. "Agreement" means this Sixth Amendment and Restatement Agreement.  1.1.2. "Effective Date" means the date on which the Agent confirms to the  Borrowers in writing that it has received (or has waived in writing the  receipt of) each of the documents and/or evidence listed in Annexure A  (Conditions Precedent) of this Agreement (in form and substance  satisfactory to the Agent).  1.1.3. Long Stop Date" means the date which falls 15 (fifteen) Business Days  from and including the date of this Agreement.   1.1.4. "Parties" means the parties to this Agreement.   1.1.5. "Sixth Amended and Restated Facility Agreement" means the Facility  Agreement as amended and restated by this Agreement in the form set  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 4  Execution Version      out in Annexure B (Sixth Amended and Restated Facility Agreement) of  this Agreement.  1.1.6. "Upfront Fee Letter" means the fee letter entered into by and between  the Borrowers and the Original Lender on or about the date of this  Agreement and setting out the payment terms of an upfront fee, all on the  terms set out therein.   1.2. Interpretation  1.2.1. The rules of interpretation of the Facility Agreement shall apply to this  Agreement as if set out in this Agreement save that references in the  Facility Agreement to "this Agreement" shall be construed as references  to this Agreement.  1.2.2. Unless the context otherwise requires, references in the Facility  Agreement to "this Agreement" shall be to the Facility Agreement as  amended and restated by this Agreement.  1.2.3. In addition to the definitions in clause 1.1, unless the context requires  otherwise:  1.2.3.1. the singular shall include the plural and vice versa;  1.2.3.2. a reference to any one gender, whether masculine, feminine  or neuter, includes the other two.  1.2.4. All the headings and sub-headings in this Agreement are for convenience  only and are not to be taken into account for the purposes of interpreting  it.  1.2.5. The Annexures hereto form part of this Agreement and shall have effect  as if set out in full in the body of this Agreement. Any reference to this  Agreement includes such Annexures.  1.3. Third Parties  A person who is not a Party has no right under the Contracts (Rights of Third parties)  Act, 1999 to enforce or enjoy the benefit of any term of this Agreement.  1.4. Designation  In accordance with the Facility Agreement, the Agent and the Borrowers designate this  Agreement as a Finance Document.  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 5  Execution Version      2. CONDITIONS PRECEDENT  The provisions of clause 4 (Amendment and Restatement) of this Agreement shall take effect  with effect on and from the Effective Date.  3. REPRESENTATIONS  The Obligors make the representations and warranties set out in clause 18 (Representations)  of the Facility Agreement (by reference to the facts and circumstances then existing):  3.1. on the date of this Agreement; and  3.2. on the Effective Date,  and acknowledge that the Finance Parties have entered into this Agreement and have agreed  to continue to provide the Facility in full reliance on those representations and warranties.  4. AMENDMENT AND RESTATEMENT  4.1. With effect on and from the Effective Date, the Facility Agreement shall be amended  and restated in the form set out in Annexure B (Sixth Amended and Restated Facility  Agreement) of this Agreement so that the rights and obligations of the Parties to the  Sixth Amended and Restated Facility Agreement shall, on and from the Effective Date,  be governed by and construed in accordance with the provisions of the Sixth Amended  and Restated Facility Agreement.  4.2. If the Effective Date has not occurred by the Longstop Date (or such later date as may  be confirmed by the Agent to the Borrowers in writing (and whether or not such  confirmation is given before or after such Longstop Date), the amendments  contemplated by this Agreement shall never take effect.  5. GUARANTEE CONFIRMATION  5.1. Subject to the terms and conditions of the Sixth Amended and Restated Facility  Agreement, each Obligor confirms that its obligations under clause 17 (Guarantee and  Indemnity) of the Facility Agreement shall remain in full force and effect in respect of,  among other things, the other Obligor’s obligations under the Facility Agreement (in  each case, as amended and restated pursuant to this Agreement), notwithstanding the  amendments to be made to the Facility Agreement under and in terms of this  Agreement.  5.2. Each Obligor’s obligations under the Facility Agreement (as amended and restated  pursuant to this Agreement) and the other Finance Documents to which it is a Party is  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 6  Execution Version      and shall continue to be guaranteed by the other Obligor under clause 17 (Guarantee  and Indemnity) of the Facility Agreement.  6. CONTINUITY AND FURTHER ASSURANCE  6.1. Continuing obligations  The provisions of the Facility Agreement and the other Finance Documents shall, save  as amended by this Agreement, continue in full force and effect and each of the Parties’  rights and obligations under those Finance Documents, save as amended by this  Agreement, shall not be affected or impaired by the execution of this Agreement.  6.2. Further assurance  Each Obligor shall, at the request of the Agent and at its own expense, do all such acts  and things reasonably necessary or desirable to give effect to the amendments effected  or to be effected pursuant to this Agreement.  7. FEES, COSTS AND EXPENSES  7.1. Transaction expenses  The Borrowers shall, within 5 (five) Business Days of the Effective Date, pay the  Finance Parties the amount of all documented costs and expenses (including legal fees  of the Agent's legal counsel, ENSafrica, but subject to any separately agreed cap)  reasonably incurred by any of them directly in connection with the negotiation,  stamping, preparation, printing, execution and registration of this Agreement and any  other documents referred to in this Agreement.  7.2. Enforcement costs  The Borrowers shall, within 5 (five) Business Days of demand, pay to each Finance  Party the amount of all costs and expenses (including legal fees) incurred by that  Finance Party (acting reasonably) in connection with (i) the enforcement of; or (ii) the  preservation of, any rights under any Finance Document.  7.3. Upfront Fee  The Borrowers shall pay and discharge the upfront fee to the Original Lender in the  amount and at the time contemplated by the Upfront Fee Letter.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 7  Execution Version  8. MISCELLANEOUS 8.1. Incorporation of terms  The provisions of clause 30 (Notices), clause 32 (Partial Invalidity), clause 33  (Remedies and Waivers) and clause 37.1 (Jurisdiction) of the Facility Agreement shall  be incorporated into this Agreement as if set out in full in this Agreement and as if  references in those clauses to "this Agreement" are references to this Agreement.  8.2. Counterparts  This Agreement may be executed in any number of counterparts, and this has the same  effect as if the signatures on the counterparts were on a single copy of this Agreement.  9. GOVERNING LAW This Agreement and any non-contractual obligations arising out of or in connection with it are  governed by English law.  This Agreement has been entered into on the date stated at the beginning of this Agreement.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version  The Borrower  GOLD FIELDS GHANA LIMITED  By: .........................................................  Address: No. 7 Dr Amilcar Cabral Road, Airport Residential Area, Accra, P. O. Box KA 30742,  KIA, Accra, Ghana  Tel: +233 (0) 302 770 189/90/91  Email: Alfred.Baku@goldfields.com  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version  The Borrower  ABOSSO GOLDFIELDS LIMITED  By: .........................................................  Address: No. 7 Dr Amilcar Cabral Road, Airport Residential Area, Accra, P. O. Box KA 30742,  KIA, Accra, Ghana  Tel: +233 (0) 302 770 189/90/91  Email: Alfred.Baku@goldfields.com.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version  The Guarantor  GOLD FIELDS GHANA LIMITED  By: .........................................................  Address: No. 7 Dr Amilcar Cabral Road, Airport Residential Area, Accra, P. O. Box KA 30742,  KIA, Accra, Ghana  Tel: +233 (0) 302 770 189/90/91  Email: Alfred.Baku@goldfields.com.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version  The Guarantor  ABOSSO GOLDFIELDS LIMITED  By: .........................................................  Address: No. 7 Dr Amilcar Cabral Road, Airport Residential Area, Accra, P. O. Box KA 30742,  KIA, Accra, Ghana  Tel: +233 (0) 302 770 189/90/91  Email: Alfred.Baku@goldfields.com.gh  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version        The Original Lender    THE STANDARD BANK OF SOUTH AFRICA LIMITED (ACTING THROUGH ITS ISLE OF MAN  BRANCH)     By: ......................................................... By: .........................................................    Address: Standard Bank House     One circular road    Douglas    Isle of Man  Tel:  +44 1624 643 649/812/818  Attention: IOM Branch Transaction Management Unit  Email:  iomtransactionmanagementunit@standardbank.com   mailto:Raymond.Waldeck@standardbank.co.za     DocuSign Envelope ID: 34125B3B-225D-44D9-907C-9E1ACE12AF8F 





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version          The Agent    THE STANDARD BANK OF SOUTH AFRICA LIMITED (ACTING THROUGH ITS CORPORATE AND  INVESTMENT BANKING DIVISION)     By: .........................................................    Address: 30 Baker Street, 3rd Floor East, Johannesburg 2196  Tel:  +2711 636 0170  Attention: The Head, Corporate Financing Solutions SA - Investment Banking  Email:  Raymond.Waldeck@standardbank.co.za; and  mailto:Meitmu@standardbank.co.za  iomtransactionmanagementunit@standardbank.com    DocuSign Envelope ID: 34125B3B-225D-44D9-907C-9E1ACE12AF8F #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version  Annexure A  CONDITIONS PRECEDENT  1. Borrower Group 1.1. Certified copies of the constitutional documents of each Obligor or a certificate of an  authorised signatory of GFGL certifying that the constitutional documents previously  delivered to the Agent for the purpose of the Facility Agreement have not been  amended and remain in full force and effect.  1.2. A copy of a resolution of the board of directors of each Obligor:  1.2.1. approving the terms of, and the transactions contemplated by, the Finance  Documents to which it is a party, and resolving that it executes the Finance  Documents to which it is a party;  1.2.2. authorising a specified person or persons to execute the Finance  Documents to which it is a party on its behalf; and  1.2.3. authorising a specified person or persons, on its behalf, to sign and/or  dispatch all documents and notices (including, if relevant, any Utilisation  Request) to be signed and/or dispatched by it under or in connection with  the Finance Documents to which it is a party.  1.3. A specimen of the signature of each person authorised by the resolution referred to in  clause 1.2 above.  2. Legal Opinions 2.1. A legal opinion of ENS Africa (South Africa), legal advisers to the Agent as to English  law, substantially in the form distributed to the Original Lender prior to signing this  Agreement.  2.2. A legal opinion of ENS Africa (Ghana), legal advisers to the Agent as to Ghanaian law,  substantially in the form distributed to the Original Lenders prior to signing this  Agreement.  3. Other documents and evidence 3.1. Duly executed copy of this Agreement.  3.2. Duly executed copy of the Upfront Fee Letter.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 2  Execution Version  3.3. Evidence to the satisfaction of the Agent that the Sixth Amendment and Restatement  Agreement has been duly stamped by the competent Ghanaian authorities in  accordance with the laws of Ghana.  3.4. Evidence that any agent for service of process referred to in clause 37.2 (Service of  Process) of the Sixth Amended and Restated Facility Agreement has accepted (or has  confirmed its continued acceptance of) its appointment for the purposes of that  agreement.   3.5. All documentation and information required by the Finance Parties in relation to each  Obligor to enable it to comply with its "know your customer" procedures.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version  Annexure B  SIXTH AMENDED AND RESTATED FACILITY AGREEMENT  REVOLVING CREDIT FACILITY AGREEMENT  ORIGINALLY DATED 22 DECEMBER 2010  AS AMENDED AND RESTATED BY AN AMENDMENT AND RESTATEMENT AGREEMENT  DATED 6 MAY 2014  AS AMENDED AND RESTATED BY AN AMENDMENT AND RESTATEMENT AGREEMENT  DATED 28 OCTOBER 2016   AS AMENDED AND RESTATED BY AN AMENDMENT AND RESTATEMENT AGREEMENT  DATED 12 June 2017  AS AMENDED AND RESTATED BY AN AMENDMENT AND RESTATEMENT AGREEMENT  DATED 22 March 2018  AS AMENDED AND RESTATED BY AN AMENDMENT AND RESTATEMENT AGREEMENT  DATED 23 November 2018  AS AMENDED AND RESTATED BY AN AMENDMENT AND RESTATEMENT AGREEMENT  DATED __________________ 2021  For  GOLD FIELDS GHANA LIMITED  and  ABOSSO GOLDFIELDS LIMITED  with  THE STANDARD BANK OF SOUTH AFRICA LIMITED (ACTING THROUGH ITS ISLE OF MAN  BRANCH)  and  THE STANDARD BANK OF SOUTH AFRICA LIMITED (ACTING THROUGH ITS CORPORATE AND  INVESTMENT BANKING DIVISION)  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 2  Execution Version      PARTIES:  This Agreement is made between:  (A) GOLD FIELDS GHANA LIMITED, a company registered in accordance with the laws of Ghana  under registration number CS592542015 (GFGL, as "Borrower" and "Guarantor");  (B) ABOSSO GOLDFIELDS LIMITED, a company registered in accordance with the laws of  Ghana under registration number CS592552015 (AGL, as "Borrower" and "Guarantor");  (C) THE STANDARD BANK OF SOUTH AFRICA LIMITED ("SBSA") (ACTING THROUGH ITS  ISLE OF MAN BRANCH), (the "Original Lender"); and  (D) THE STANDARD BANK OF SOUTH AFRICA LIMITED, as agent from the Agent Appointment  Date (as defined below) of the other Finance Parties (the "Agent").  IT IS AGREED AS FOLLOWS:  1. DEFINITIONS AND INTERPRETATION  1.1. Definitions  In this Agreement:  1.1.1. "2014 Amendment and Restatement Agreement" means the  amendment and restatement agreement dated 6 May 2014 between,  amongst others, the Borrowers, SBSA and the Agent, which amended and  restated this Agreement as set out therein.  1.1.2. "2016 Amendment and Restatement Agreement" means the  amendment and restatement agreement dated 28 October 2016 between,  amongst others, the Borrowers, SBSA and the Agent, which amended and  restated this Agreement as set out therein.    1.1.3. "2017 Amendment and Restatement Agreement" means the  amendment and restatement agreement dated 12 June 2017 between,  amongst others, the Borrowers, SBSA and the Agent, which amended and  restated this Agreement as set out therein.  1.1.4. "2018 Amendment and Restatement Agreement (First)" means the  amendment and restatement agreement dated 22 March 2018 between  the Borrowers, SBSA, and, inter alios, the Agent which amended and  restated this Agreement as set out herein.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 3  Execution Version      1.1.5. "2018 Amendment and Restatement Agreement (Second)" means the  amendment and restatement agreement dated on or about 23 November  2018 between, amongst others, the Borrowers, SBSA and the Agent,  which amended and restated this Agreement as set out therein.  1.1.6. "2021 Amendment and Restatement Agreement" means the  amendment and restatement agreement dated on or about the  Amendment and Restatement Signature Date between the Borrowers,  SBSA and the Agent which amended and restated this Agreement as set  out herein.  1.1.7. "Accession Letter" means a document substantially in the form set out in  Schedule 5 (Form of Accession Letter).  1.1.8. "Additional Guarantor" means a company which becomes an Additional  Guarantor in accordance with clause 24 (Changes to the Obligors).  1.1.9. "Additional Obligor" means an Additional Guarantor.  1.1.10. "Affiliate" means, in relation to any person, a Subsidiary of that person or  a Holding Company of that person or any other Subsidiary of that Holding  Company.  1.1.11. "Agent" means, with effect from the Agent Appointment Date, the person  from time to time appointed in terms of clause 25.1 (Appointment of the  Agent) to act as the agent of the Finance Parties in connection with the  Finance Documents, which shall initially be The Standard Bank of South  Africa Limited, provided that prior to the Agent Appointment Date each  reference in this Agreement to the Agent shall be deemed to be a  reference to the Original Lender.  1.1.12. "Agent Appointment Date" means, in the event that the Original Lender  intends to transfer any of its rights or obligations under the Finance  Documents in accordance with the provisions of clause 23 (Changes to  the Lenders), the date notified by the Original Lender to the Borrowers as  being the date from which the Agent is appointed in terms of clause 25.1  (Appointment of the Agent)).  1.1.13. "Agreement" means the Original Facility Agreement (as defined in the  2021 Amendment and Restatement Agreement) as amended and/or  restated from time to time.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 4  Execution Version      1.1.14. "Applicable Anti-Corruption Law" means any anti-corruption or other  similar law applicable to the business conducted by a Material Group  Company at the relevant time in any jurisdiction in which that Material  Group Company conducts business.  1.1.15. "Amendment and Restatement Signature Date" means the date of  signature of the 2021 Amendment and Restatement Agreement by the last  party thereto signing in time.  1.1.16. "Auditors" means, at any time, the auditors of GFGL and AGL at that time,  being as at the date of this Agreement PricewaterhouseCoopers, and any  replacement for those auditors appointed by each Borrower.  1.1.17. "Availability Period" means the period from and including Effective Date  to and including the date which is one month prior to the Final Maturity  Date.  1.1.18. "Available Commitment" means a Lender’s Commitment under the  Facility minus (subject as set out below):  1.1.18.1. the amount of its participation in any outstanding Loans under  the Facility; and   1.1.18.2. in relation to any proposed Utilisation, the amount of its  participation in any Loans that are due to be made under the  Facility on or before the proposed Utilisation Date.  For the purposes of calculating a Lender’s Available Commitment in  relation to any proposed Utilisation, that Lender’s participation in any  Loans that are due to be repaid or prepaid on or before the proposed  Utilisation Date shall not be deducted from a Lender’s Commitment.  1.1.19. "Borrower" means a borrower named as such in Part 1 of Schedule 1  (The Original Parties) hereto.  1.1.20. "Break Costs" means the amount (if any) by which:  1.1.20.1. the interest which a Lender should have received for the  period from the date of receipt of all or any part of its  participation in a Loan or Unpaid Sum to the last day of the  current Interest Period in respect of that Loan or Unpaid Sum,  had the principal amount or Unpaid Sum received been paid  on the last day of that Interest Period;  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 5  Execution Version      exceeds:  1.1.20.2. the amount which that Lender would be able to obtain by  placing an amount equal to the principal amount or Unpaid  Sum received by it on deposit with a leading bank in the  Relevant Interbank Market for a period starting on the  Business Day following receipt or recovery and ending on the  last day of the current Interest Period.  1.1.20.3. "Business Day" means a day (other than a Saturday or  Sunday) on which banks are open for general business in  Ghana, New York and Johannesburg.  1.1.21. "Commitment" means:  1.1.21.1. in relation to the Original Lender, the amount set opposite its  name in in Part II of Schedule 1 (The Original Parties) and  any additional amounts transferred to it under this Agreement;  and  1.1.21.2. in relation to any other Lender, any amount transferred to it  under this Agreement, to the extent not cancelled, reduced or  transferred by it under this Agreement.  1.1.22. "Compliance Certificate" means a certificate substantially in the form set  out in Schedule 7 (Form of Compliance Certificate).  1.1.23. "Confidentiality Undertaking" means a confidentiality undertaking  substantially in a recommended form of the LMA or in any other form  agreed between the Borrowers and the Agent.  1.1.24. "Consolidated EBITDA" has the meaning set out in clause 20.1 (Financial  Definitions).   1.1.25. "Consolidated Tangible Net Worth" means, at any time, the  "Shareholders’ Equity", as reported in the "Group Statement of Changes  in Shareholders’ Equity" in the last set of annual or semi-annual  consolidated financial statements of each Borrower delivered to the Agent  pursuant to this Agreement.  1.1.26. "Constitutional Documents" means, in respect of any person at any  time, the then current and up-to-date constitutional documents of such  person at such time (including, without limitation, such person’s  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 6  Execution Version  memorandum and articles of association, certificate of incorporation,  articles of incorporation or commercial registration certificate).  1.1.27. "Deed of Release" shall have the same meaning ascribed to it in the 2018  Amendment and Restatement Agreement (First).  1.1.28. "Default" means an Event of Default or any event or circumstance  specified in clause 22 (Events of Default) which would (with the expiry of  a grace period, the giving of notice, the making of any determination under  the Finance Documents or any combination of any of the foregoing) be an  Event of Default.  1.1.29. "Effective Date" has the meaning ascribed to that term in the 2021  Amendment and Restatement Agreement.  1.1.30. "Encumbrance" means:  1.1.30.1. any mortgage, charge, pledge, lien, assignment or cession  conferring security, hypothecation, a security interest,  preferential right or trust arrangement or other encumbrance  of the like securing any obligation of any person; or  1.1.30.2. any arrangement under which money or claims to, or for the  benefit of, a bank or other account may be applied, set off or  made subject to a combination of accounts so as to effect  discharge of any sum owed or payable to any person; or  1.1.30.3. any other type of preferential agreement or arrangement  (including any title transfer and retention arrangement), the  effect of which is the creation of a security interest.  1.1.31. "Environmental Claim" means any claim, proceeding or investigation by  any person in respect of any Environmental Law.  1.1.32. "Environmental Law" means any law applicable to the business  conducted by a Material Group Company at the relevant time in any  jurisdiction in which that Material Group Company conducts business  which relates to the pollution, degradation or protection of the environment  or harm to or the protection of human health or the health of animals or  plants.  1.1.33. "Environmental Permits" means any permit, licence, consent, approval  and other authorisation and the filing of any notification, report or  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 7  Execution Version  assessment required under any Environmental Law for the operation of  the business of any Material Group Company conducted on or from the  properties owned or used by that Material Group Company.  1.1.34. "Event of Default" means any event or circumstance specified as such in  clause 22 (Events of Default).  1.1.35. "Facility" means the revolving credit facility provided under this  Agreement to the Borrowers by the Lenders.  1.1.36. "Facility Office" means the office notified by a Lender to the Agent in  writing on or before the date it becomes a Lender (or, following that date,  by not less than 5 (five) Business Days’ written notice) as the office  through which it will perform its obligations under this Agreement.  1.1.37. "Final Maturity Date" means the date falling 3 (three) years after the  Effective Date.   1.1.38. "Finance Document" means this Agreement, the 2014 Amendment and  Restatement Agreement, the 2016 Amendment and Restatement  Agreement, the 2017 Amendment and Restatement Agreement, the 2018  Amendment and Restatement Agreement (First), the 2018 Amendment  and Restatement Agreement (Second), the 2021 Amendment and  Restatement Agreement, the Deed of Release, the Upfront Fee Letter (as  defined in the 2021 Amendment and Restatement Agreement), any  Accession Letter, Utilisation Requests, any Resignation Letter and any  other document designated as such by the Agent and the Borrowers.  1.1.39. "Finance Party" means the Agent and/or any Lender.  1.1.40. "Financial Indebtedness" means (without double counting) any  indebtedness for or in respect of:  1.1.40.1. moneys borrowed;  1.1.40.2. any amount raised by acceptance under any acceptance  credit facility or dematerialised equivalent;  1.1.40.3. any amount raised pursuant to any note purchase facility or  the issue of bonds, notes, debentures, loan stock or any  similar instrument;  1.1.40.4. subject to clause 19.4 (IFRS 16 treatment), the amount of any  liability in respect of any lease or hire purchase contract which  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 8  Execution Version      would, in accordance with GAAP, be treated as a balance  sheet liability;  1.1.40.5. receivables sold or discounted (other than any receivables to  the extent they are sold on a non-recourse basis);  1.1.40.6. the amount of liability in respect of any purchase price for  assets or services the payment of which is deferred where the  deferral of such price is either;  1.1.40.6.1. used primarily as a method of raising credit;  or  1.1.40.6.2. not made in the ordinary course of business;  1.1.40.7. any agreement or option to re-acquire an asset if one of the  primary reasons for entering into such agreement or option is  to raise finance;  1.1.40.8. any amount raised under any other transaction (including any  forward sale or purchase agreement) having the commercial  effect of a borrowing;  1.1.40.9. any derivative transaction entered into in connection with  protection against or benefit from fluctuation in any rate or  price (and, when calculating the value of any derivative  transaction, only the marked to market value shall be taken  into account);  1.1.40.10. any counter-indemnity obligation in respect of a guarantee,  indemnity, bond, standby or documentary letter of credit or any  other instrument issued by a bank or financial institution;  1.1.40.11. any amount raised by the issue of redeemable shares; and  1.1.40.12. the amount of any liability in respect of any guarantee or  indemnity for any of its items referred to in clauses 1.1.40.1 to  1.1.40.11 above.  1.1.41. "Financial Year" means, at any time, the financial year of the Group  ending on 31 December in each calendar year.  1.1.42. "GAAP" means the generally accepted accounting principles set out in  IFRS.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 9  Execution Version      1.1.43. "Group" means GFGL, AGL and each of their Subsidiaries for the time  being.  1.1.44. "Group Company" means a member of the Group.  1.1.45. "Guarantor" means an Original Guarantor and any person who becomes  a party to this Agreement as an Additional Guarantor until it has ceased to  be a Guarantor in accordance with clause 24 (Changes to the Obligors).  1.1.46. "Holding Company" means, in relation to a company or corporation, any  other company or corporation in respect of which it is a Subsidiary.  1.1.47. "IFRS" means International Financial Reporting Standards issued and/or  adopted by the International Accounting Standards Board.  1.1.48. "Indebtedness for Borrowed Money" means Financial Indebtedness  save for any indebtedness for or in respect of clauses 1.1.40.9 and  1.1.40.10 of the definition of Financial Indebtedness.  1.1.49. "Information" has the meaning given to such term in clause 18.9 (No  misleading information).  1.1.50. "Interest Period" means, in relation to a Loan, each period determined in  accordance with clause 9 (Interest Periods) and, in relation to an Unpaid  Sum, each period determined in accordance with clause 8.3 (Default  interest).  1.1.51. "Lender" means:  1.1.51.1. the Original Lender; and  1.1.51.2. any bank or financial institution which has become a Party in  accordance with clause 23 (Changes to the Lenders),  which in each case has not ceased to be a Party in accordance with the  terms of this Agreement.  1.1.52. "LIBOR" means, in relation to any Loan:  1.1.52.1. the applicable Screen Rate; or  1.1.52.2. (if no Screen Rate is available for dollars for the Interest Period  of that Loan) the arithmetic mean of the rates (rounded  upwards to four decimal places) as supplied to the Agent at its  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 10  Execution Version  request quoted by the Reference Banks to leading banks in  the London interbank market,  as of the Specified Time on the Quotation Day for the offering of deposits  in dollars and for a period comparable to the Interest Period for that Loan,  and if, in either case, that rate is less than zero, LIBOR shall be deemed  to be zero.  1.1.53. "LMA" means the Loan Market Association.  1.1.54. "Loan" means a loan made or to be made under the Facility or the principal  amount outstanding for the time being of that loan.  1.1.55. "Majority Lenders" means:  1.1.55.1. if there are no Loans then outstanding, a Lender or Lenders  whose Commitments aggregate more than 66 2⁄3% (sixty six  and two-thirds percent) of the Total Commitments (or, if the  Total Commitments have been reduced to zero, aggregated  more than 66 2⁄3% (sixty six and two-thirds percent) of the  Total Commitments immediately prior to the reduction); or  1.1.55.2. at any other time, a Lender or Lenders whose participations in  the Loans then outstanding aggregate more than 66 2⁄3% (sixty  six and two-thirds percent) of all the Loans then outstanding.  1.1.56. "Margin" means, in relation to each Interest Period of a Loan:  1.1.56.1. if the average outstanding balance of all Loans outstanding  under the Facility during such Interest Period was less than or  equal to 33% (thirty three percent) of the Total Commitments,  2.75% (two point seven five percent) per annum for that  Interest Period;  1.1.56.2.  if the average outstanding balance of all Loans outstanding  during such Interest Period was greater than 33% (thirty three  percent) of the Total Commitments but less than or equal to  66% (sixty six percent) per annum, 2.85% (two point eight five  percent) per annum for that Interest Period; or  1.1.56.3. if the average outstanding balance of all Loans outstanding  during such Interest Period was greater than 66% (sixty six  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 11  Execution Version      percent) per annum, 2.95% (two point nine five percent) per  annum for that Interest Period;  1.1.57. "Material Adverse Effect" means a material adverse effect on:  1.1.57.1. the ability of an Obligor to perform its financial or other material  obligations under the Finance Documents to which it is a party;  or  1.1.57.2. the validity or enforceability of the Finance Documents or any  of them.  1.1.58. "Material Group Companies" means:   1.1.58.1. each Obligor; and  1.1.58.2. any Group Company from time to time that is not a Non- Material Group Company,  and "Material Group Company" means, as the context requires, any one  of them.  1.1.59. "Month" means a period starting on one day in a calendar month and  ending on the numerically corresponding day in the next calendar month,  except that:  1.1.59.1. (subject to clause 1.1.59.3 below) if the numerically  corresponding day is not a Business Day, that period shall end  on the next Business Day in that calendar month in which that  period is to end if there is one, or if there is not, on the  immediately preceding Business Day;  1.1.59.2. if there is no numerically corresponding day in the calendar  month in which that period is to end, that period shall end on  the last Business Day in that calendar month; and  1.1.59.3. if an Interest Period begins on the last Business Day of a  calendar month, that Interest Period shall end on the last  Business Day in the calendar month in which that Interest  Period is to end.  clauses 1.1.59.1, 1.1.59.2 and 1.1.59.3 above will only apply to the last  Month of any period.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 12  Execution Version  1.1.60. "Non-Material Group Company" means, at any time, a member of the  Group (other than an Obligor) which had EBITDA (determined on the  same basis as Consolidated EBITDA) or gross assets in its most recently  ended Financial Year (on a consolidated basis taking into account it and  its Subsidiaries only) less than or equal to 10% (ten percent) of  Consolidated EBITDA (but including, for these purposes only, the net  income of any Project Finance Subsidiaries) or gross assets of the Group  (calculated according to the most recent set of audited consolidated  financial statements delivered pursuant to clause 19.1 (Financial  Statements)). Compliance with the aforementioned condition shall be  determined by reference to the latest audited financial statements of such  member of the Group (consolidated in the case of a member of the Group  which itself has Subsidiaries), provided that:    1.1.60.1. if in the case of any member of the Group, which itself has  Subsidiaries, and in respect of which no consolidated financial  statements are prepared and audited, its consolidated  EBITDA and gross assets shall be determined on the basis of  pro forma consolidated financial statements of the relevant  member of the Group and its Subsidiaries, prepared for this  purpose by the Borrowers;   1.1.60.2. if any intra-Group transfer or re-organisation takes place, the  audited financial statements of the Group Company and all  relevant members of the Group shall be adjusted by the  Borrowers in order to take into account such intra-Group  transfer or re-organisation; and   1.1.60.3. the audited financial statements of the Group and any relevant  member of the Group shall be adjusted in such a manner as  the Auditors think fair and appropriate to take account of the  acquisition or disposal of any member of the Group or any  business of any member of the Group, after the date or at  which the audited financial statements of the Group are made  up.  Should there be any dispute regarding whether any member of the Group  is or is not a Non-Material Group Company such dispute shall be referred,  at the request of the Agent, to the Auditors and a report by the Auditors  that a member of the Group is or is not a Non-Material Group Company  shall, in the absence of manifest error, be conclusive and binding on all  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 13  Execution Version      Parties. The costs of obtaining the report by the Auditors will be borne by  the unsuccessful party to the dispute.  1.1.61. "Obligor" means a Borrower or a Guarantor.  1.1.62. "Original Financial Statements" means the audited consolidated  financial statements of each Borrower for the Financial Year ended  31 December 2020.  1.1.63. "Original Guarantor" means an original guarantor named as such in  Part 1 of Schedule 1 (The Original Parties) hereto.  1.1.64. "Party" means a party to this Agreement.  1.1.65. "Permitted Disposal" means any sale, lease, transfer or other disposal:  1.1.65.1. by an Obligor or any member of the Group of obsolete or  redundant assets which are no longer required for the efficient  operation of the business of such Obligor or such member of  the Group; or  1.1.65.2. by an Obligor or any member of the Group in the ordinary  course of its day-to-day business if that sale, lease, transfer or  other disposal is not otherwise restricted by a term of any  Finance Document; or  1.1.65.3. by an Obligor to another Obligor (other than to an Additional  Obligor); or  1.1.65.4. by a member of the Group that is not an Obligor to an Obligor  or to an Additional Obligor; or  1.1.65.5. by a member of the Group that is not an Obligor to another  member of the Group that is not an Obligor; or  1.1.65.6. by any member of the Group to any other person where the  higher of the market value or consideration receivable when  aggregated with the higher of the market value or  consideration receivable for any other sale, lease, transfer or  other disposal by any member of the Group (other than a sale,  lease, transfer or other disposal referred to in 1.1.65.1,  1.1.65.2, 1.1.65.3, 1.1.65.4, 1.1.65.5 and 1.1.65.7) does not  exceed 10% (ten percent) of the Consolidated Tangible Net  Worth in any Financial Year subject to a maximum of  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 14  Execution Version      30% (thirty percent) of Consolidated Tangible Net Worth at  such time in aggregate during the period from the Effective  Date to the Final Maturity Date; or  1.1.65.7. for which the Agent has given its prior written consent (acting  on the instructions of the Majority Lenders).  1.1.66. "Permitted Encumbrance" means:  1.1.66.1. any Encumbrance created prior to the Effective Date which (i)  is disclosed in the Original Financial Statements and (ii) in all  circumstances secures only indebtedness outstanding or a  facility available at the Effective Date if the principal amount or  original facility thereby secured is not increased after the  Effective Date;  1.1.66.2. any title transfer or retention arrangement entered into by any  member of the Group in the normal course of its trading  activities and on terms no worse for that member of the Group  than the standard terms of the relevant supplier;  1.1.66.3. any netting or set-off arrangement entered into by any  member of the Group in the ordinary course of its banking  arrangements (which shall include, for the avoidance of doubt,  those pursuant to hedging arrangements in relation to gold  and silver prices, foreign exchange rates and interest rates  where such arrangements are entered into for the purposes of  providing protection against fluctuation in such rates or prices  in the ordinary course of business), for the purpose of netting  debit and credit balances;  1.1.66.4. any lien arising by operation of law and in the ordinary course  of trading and not by reason of any default (whether in  payments or otherwise), of any member of the Group;  1.1.66.5. any Encumbrance over or affecting (or transaction described  in clause 21.3 (Negative Pledge) (Quasi-Encumbrance)) any  asset acquired by a member of the Group after the date of this  Agreement if:  1.1.66.5.1. the Encumbrance or Quasi-Encumbrance  was not created in contemplation of the  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 15  Execution Version      acquisition of that asset by a member of the  Group;  1.1.66.5.2. the principal amount secured has not been  increased in contemplation of, or since the  acquisition of that asset by a member of the  Group; and  1.1.66.5.3. the Encumbrance or Quasi-Encumbrance is  (other than an Encumbrance or  Quasi-Encumbrance otherwise permitted  pursuant to clauses 1.1.66.2, 1.1.66.3,  1.1.66.4, 1.1.66.6, 1.1.66.7, 1.1.66.8)  removed or discharged within six months of  the date of acquisition of such asset;  1.1.66.6. any Encumbrance or Quasi-Encumbrance over or affecting  any asset of any company which becomes a member of the  Group after the date of this Agreement, where the  Encumbrance or Quasi-Encumbrance is created prior to the  date on which that company becomes a member of the Group,  if:  1.1.66.6.1. the Encumbrance or Quasi-Encumbrance  was not created in contemplation of the  acquisition of that company;  1.1.66.6.2. the principal amount secured has not  increased in contemplation of or since the  acquisition of that company; and  1.1.66.6.3. the Encumbrance or Quasi-Encumbrance is  (other than an Encumbrance or  Quasi-Encumbrance otherwise permitted  pursuant to clauses 1.1.66.2, 1.1.66.3,  1.1.66.4, 1.1.66.5, 1.1.66.7 or, 1.1.66.8)  removed or discharged within six months of  that company becoming a member of the  Group;  1.1.66.7. in respect of Encumbrances or Quasi-Encumbrances over or  affecting any asset of any Material Group Company, any  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 16  Execution Version      Encumbrance or Quasi-Encumbrance securing indebtedness  the principal amount of which (when aggregated with the  principal amount of any other indebtedness which has the  benefit of Encumbrance or Quasi-Encumbrance other than  any permitted under clauses 1.1.66.1 to 1.1.66.6 above and  1.1.66.8 below)) does not at any time exceed 5% (five  percent) of Consolidated Tangible Net Worth (or its equivalent  in another currency) (but adjusted to include the net value of  new assets acquired since the last date of the latest set of  consolidated annual financial statements of the Group); or  1.1.66.8. any other Encumbrance or Quasi-Encumbrance as agreed by  the Agent (acting on the instructions of the Majority Lenders)  in writing.  1.1.67. "Permitted Financial Indebtedness" means any Financial Indebtedness:  1.1.67.1. arising under the Finance Documents;  1.1.67.2. arising under any environmental bond which any member of  the Group is required to issue by any applicable law;  1.1.67.3. arising under any derivative transaction entered into in  connection with protection against or benefit from fluctuation  in any rate or price but not for speculative purposes;  1.1.67.4. of the Group existing and available on the Effective Date (or,  of any person that becomes a member of the Group from time  to time, provided that, such Financial Indebtedness existed at  the time such person became a member of the Group and was  not created in anticipation thereof);  1.1.67.5. between Group Companies to the extent incurred for the  purposes of financing general working capital requirements; or  1.1.67.6. in respect of any lease or hire purchase contract entered into  at any time which:  1.1.67.6.1. would, in accordance with GAAP immediately  after the adoption of IFRS 16, be treated as a  balance sheet liability; and  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 17  Execution Version      1.1.67.6.2. would not, in accordance with GAAP in force  immediately before the adoption of IFRS 16,  have been treated as a balance sheet liability;  1.1.67.7. not falling within clauses 1.1.67.1 to 1.1.67.6 above provided  that the aggregate amount of all Financial Indebtedness  (excluding, for the avoidance of doubt, any Financial  Indebtedness incurred by a Guarantor) permitted under this  clause 1.1.67.6 does not at any time exceed US$75 000 000  (US dollars seventy five million) (or its equivalent).  1.1.68. "Permitted Refinancing" means, at any time, a Refinancing of the Facility  if:  1.1.68.1. the proceeds of such Refinancing are immediately applied to  voluntarily prepay the outstanding Loans in full or in part under  the Facility in accordance with clause 7.6 (Voluntary  Prepayment and Cancellation: Permitted Refinancing); and  1.1.68.2. arrangements are in place prior to the implementation of such  Refinancing to the satisfaction of the Agent that the proceeds  of such Refinancing will be applied to discharge such  outstanding Loans in full or in part on the relevant date on  which such proceeds are advanced pursuant to the terms of  such Refinancing.  1.1.69. "Project Finance Subsidiary" means a single purpose company or other  entity (excluding the Borrowers) whose sole business is a project  comprised of the ownership, development, construction, refurbishment,  commissioning and/or operation of an asset which has incurred Project  Finance Borrowings.  1.1.70. "Project Finance Borrowings" means:   1.1.70.1. any indebtedness to finance (or refinance) a project comprised  of the ownership, development, construction, refurbishment,  commissioning and/or operation of assets which is incurred by  a Project Finance Subsidiary in connection with such project  and in respect of which the recourse of the person(s) making  any such finance (or re-finance) available to that Project  Finance Subsidiary for the payment, repayment and  prepayment of such indebtedness is limited to (i) the Project  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 18  Execution Version      Finance Subsidiary and its assets and/or the shares in that  Project Finance Subsidiary and/or (ii) during the period prior  to successful completion of the relevant completion tests  applicable to  such project guarantees from any one or  more members of the Group; or  1.1.70.2. any indebtedness the terms and conditions of which have  been approved by the Agent and which the Agent has agreed  in writing (acting on the instructions of the Majority Lenders) to  treat as a "Project Finance Borrowing" for the purposes of this  Agreement.  1.1.71. "Quotation Day" means, in the case of a determination of LIBOR, the date  on which quotations would customarily be provided by leading banks in  the London Interbank Market for deposits or amounts in dollars for delivery  on the first day of such period or on any other relevant date.  1.1.72. "Reference Banks" means, the principal London offices of Standard  Bank, Citi Bank, HSBC and/or such other banks as may be appointed by  the Agent in consultation with the Borrowers.  1.1.73. "Refinancing" means a repayment of all or any part of the outstanding  Loans, excluding Mandatory Prepayments, funded by any Borrower by  way of the incurrence of Financial Indebtedness and Refinance shall be  construed accordingly.  1.1.74. "Relevant Interbank Market" means the London interbank market.  1.1.75. "Repeating Representations" means each of the representations set out  in clause 18.1 (Status) to clause 18.5 (Authorisations) (inclusive) and  clause 18.7 (Deduction of Tax) to clause 18.17 (No Material Adverse  Effect) (inclusive).  1.1.76. "Repetition Date" means the first day of each Interest Period (other than  on the first day of the first Interest Period for a Loan) and, if the Interest  Period is longer than 3 (three) months, on the dates falling at three monthly  intervals after the first day of the Interest Period.  1.1.77. "Resignation Letter" means a letter substantially in the form set out in  Schedule 6 (Form of Resignation Letter).  1.1.78. "Rollover Loans" means one or more loans, subject to the terms of this  Agreement, automatically:  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 19  Execution Version      1.1.78.1. made or to be made on the same day that a maturing Loan is  due to be repaid;   1.1.78.2. the aggregate amount of which is equal to or less than the  maturing Loan; and  1.1.78.3. made or to be made for the purpose of refinancing a maturing  Loan.  1.1.79. "Sanctions" means any economic sanctions laws, regulations,  embargoes or restrictive measures administered, enacted or enforced by  the United States government (including, without limitation, the Office of  Foreign Assets Control of the U.S. Department of the Treasury or the U.S.  Department of State and including, without limitation, the designation as a  "specially designated national" or "blocked person"), the United Nations  Security Council, the European Union, Her Majesty’s Treasury, the  government of the Republic of South Africa or any other relevant sanctions  authority which replaces, or is a successor to, any of the foregoing.  1.1.80. "Sanctioned Country" means a country, territory or region that is the  target of Sanctions.  1.1.81. "Screen Rate" means the London interbank offered rate administered by  ICE Benchmark Administration Limited (or any other person which takes  over the administration of that rate) for US$ for the relevant period  displayed (before any correction, recalculation or republication by the  administrator) on page LIBOR01 or LIBOR02 of the Thomson Reuters  screen (or any replacement Thomson Reuters page which displays that  rate) or on the appropriate page of such other information service which  publishes that rate from time to time in place of Thomson Reuters.  If such  page or service ceases to be available, the Agent may specify another  page or service displaying the relevant rate after consultation with the  Borrowers and the Lenders.   1.1.82. "Specified Time" means a time determined in accordance with Schedule  8 (Timetable).  1.1.83. "Stanbic Ghana" means Stanbic Bank Ghana Limited, a financial services  provider licensed by Bank of Ghana and Securities and Exchange  Commission of Ghana with company registration number CS659892.  1.1.84. "Subsidiary" means, in relation to any company or corporation, a  company or corporation:  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 20  Execution Version      1.1.84.1. which is controlled, directly or indirectly, by the first mentioned  company or corporation;  1.1.84.2. more than half the issued share capital of which is beneficially  owned, directly or indirectly by the first mentioned company or  corporation; or  1.1.84.3. which is a Subsidiary of another Subsidiary of the first  mentioned company or corporation,  and for this purpose, a company or corporation shall be treated as being  controlled by another if that other company or corporation is able to direct  its affairs and/or to control the composition of its board of directors or  equivalent body.  1.1.85. "Tax" means any tax, levy, impost, duty or other charge or withholding of  a similar nature (including, without limitation, any penalty or interest  payable in connection with any failure to pay or any delay in paying any of  the same).  1.1.86. "Tax Credit" means a credit against, relief or remission for, or repayment  of any Tax.   1.1.87. "Tax Deduction" means a deduction or withholding for or on account of  Tax from a payment under a Finance Document.  1.1.88. "Tax Payment" means either the increase in a payment made by an  Obligor to a Finance Party under clause 12.1 (Tax gross-up) or a payment  under clause 12.2 (Tax indemnity).  1.1.89. "Total Available Commitment" means in relation to the Facility, the  aggregate for the time being of each Lender’s Available Commitment.  1.1.90. "Total Commitment" means in relation to the Facility, the aggregate for  the time being of each Lender’s Commitment.  1.1.91. "Transfer Certificate" means a certificate substantially in the form set out  in Schedule 4 (Form of Transfer Certificate) or any other form agreed  between the Agent and the Borrowers.  1.1.92. "Transfer Date" means, in relation to a transfer, the later of:  1.1.92.1. the proposed Transfer Date specified in the Transfer  Certificate; and  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 21  Execution Version      1.1.92.2. the date on which the Agent executes the Transfer Certificate.  1.1.93. "Unpaid Sum" means any sum due and payable but unpaid by an Obligor  under the Finance Documents.  1.1.94. "Utilisation" means a utilisation of the Facility.  1.1.95. "Utilisation Date" means the date of a Utilisation, being the date on which  the relevant Loan is to be made.  1.1.96. "Utilisation Request" means a notice substantially in the form set out in  Schedule 3 (Utilisation Request).  1.1.97. "VAT" means value added tax as provided for in the Value Added Tax Act  1994 (Act 546) of the Republic of Ghana, and any value added tax,  turnover tax, sales tax, indirect tax or any other tax of a similar nature in  any relevant jurisdiction.   1.2. Construction  1.2.1. Unless a contrary indication appears any reference in this Agreement to:  1.2.1.1. the Agent, any Finance Party, any Lender, any Obligor or any  Party shall be construed so as to include its successors in title,  permitted assigns and permitted transferees;  1.2.1.2. arm’s length means terms that are fair and reasonable to the  counterparty of a transaction and no more or less favourable  to the other party to the relevant transaction as could  reasonably be expected to be obtained in a comparable arm’s  length transaction with a person that is not the ultimate  Holding Company of such counterparty or an entity of which  such counterparty or its ultimate Holding Company has direct  or indirect control, or owns directly or indirectly more than 20%  (twenty percent) of the share capital or similar rights of  ownership;  1.2.1.3. the cancellation of the Facility (or any part thereof) shall be  construed as a reference to a cancellation of the Total  Available Commitments (or the applicable portion thereof);  1.2.1.4. assets includes present and future properties, revenues and  rights of every description;  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 22  Execution Version      1.2.1.5. audited means, in respect of any financial statement, those  financial statements as audited by the Auditors;  1.2.1.6. authorisations mean any authorisation, consent, registration,  filing agreement, notarisation, certificate, licence, approval,  resolution, permit and/or authority or any exemption from any  of the aforesaid, by, with or from any authority;  1.2.1.7. a Finance Document or any other agreement or instrument is  a reference to that Finance Document or other agreement or  instrument as amended, novated, supplemented, extended,  replaced or restated;  1.2.1.8. indebtedness shall be construed so as to include any  obligation (whether incurred as principal or as surety) for the  payment or repayment of money, whether present or future,  actual or contingent;  1.2.1.9. law shall be construed as any law (including statutory,  common or customary law), statute, constitution, decree,  judgment, treaty, regulation, directive, by-law, order, other  legislative measure, requirement, request or guideline  (whether or not having the force of law but, if not having the  force of law, is generally complied with by the persons to  whom it is addressed or applied) of any government,  supranational, local government, statutory or regulatory or  self-regulatory or similar body or authority or court and the  common law, as amended, replaced, re-enacted, restated or  reinterpreted from time to time;  1.2.1.10. a person shall be construed as a reference to any person, firm,  company, corporation, government, state or agency of a state  or any association, trust or partnership (whether or not having  separate legal personality) or two or more of the foregoing;  1.2.1.11. a regulation includes any regulation, rule, official directive,  request or guideline (whether or not having the force of law  but complied with generally) of any governmental,  intergovernmental or supranational body, agency, department  or regulatory, self-regulatory or other authority or organisation;  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 23  Execution Version      1.2.1.12. a provision of law is a reference to that provision as amended  or re-enacted; and  1.2.1.13. a time of day is a reference to London time.  1.2.2. Section, clause and Schedule headings are for ease of reference only.  1.2.3. Unless a contrary indication appears, a term used in any other Finance  Document or in any notice given under or in connection with any Finance  Document has the same meaning in that Finance Document or notice as  in this Agreement.  1.2.4. A Default (other than an Event of Default) is continuing if it has not been  remedied or waived and an Event of Default is continuing if it has not been  remedied or waived.  1.3. Currency Symbols and Definitions  US$, $ and dollars denote lawful currency of the United States of America.  1.4. Third party rights  1.4.1. Unless expressly provided to the contrary in a Finance Document, a  person who is not a Party has no right under the Contracts (Rights of Third  Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the  benefit of any term of this Agreement.  1.4.2. Notwithstanding any term of any Finance Document, the consent of any  person who is not a Party is not required to rescind or vary this Agreement  at any time.  2. THE FACILITY  2.1. The Facility  2.1.1. Subject to the terms of this Agreement, the Lenders make available to the  Borrowers a dollar denominated revolving credit facility in an aggregate  amount equal to the Total Commitment.  2.1.2. The Facility will be available during the Availability Period.  2.1.3. The Loans shall rank pari passu amongst each other.  2.2. Finance Parties’ rights and obligations  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 24  Execution Version      2.2.1. The obligations of each Finance Party under the Finance Documents are  several. Failure by a Finance Party to perform its obligations under the  Finance Documents does not affect the obligations of any other Party  under the Finance Documents. No Finance Party is responsible for the  obligations of any other Finance Party under the Finance Documents.  2.2.2. The rights of each Finance Party under or in connection with the Finance  Documents are separate and independent rights and any debt arising  under the Finance Documents to a Finance Party from an Obligor shall be  a separate and independent debt.  2.2.3. A Finance Party may, except as otherwise stated in the Finance  Documents, separately enforce its rights under the Finance Documents.  2.3. Borrowers rights and obligations  Without limitation or prejudice to clause 17 (Guarantee and Indemnity):  2.3.1. each of the Borrowers (the Co-obligors) shall be jointly and severally  liable for their respective obligations and liabilities arising under this  Agreement.  2.3.2. the Finance Parties may take action against, or release or compromise the  liability of, any Co-obligor, or grant time or any other indulgence, without  affecting the liability of the other Co-obligor(s).  2.3.3. all the provisions set out at clauses 17.3 (Reinstatement) to 17.7 (Deferral  of Guarantors Rights) (inclusive) shall also apply to the joint and several  obligations of the Co-obligors (the "J&S Obligations") as provided for in  clause 2.3.1 above, mutatis mutandis (and any references in those  clauses to "Guarantor" or "Guarantee" shall be construed as references to  "Co-obligor" and the "J&S Obligations" for purposes of this clause 2.3.3,  respectively).  2.4. Guarantor’s rights and obligations  2.4.1. Without limitation or prejudice to clause 17 (Guarantee and Indemnity),  each of the Guarantors shall be jointly and severally liable for their  respective obligations and liabilities arising under this Agreement.  2.4.2. Without limitation or prejudice to clause 17 (Guarantee and Indemnity), the  Finance Parties may take action against, or release or compromise the  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 25  Execution Version      liability of, any Guarantor, or grant time or any other indulgence, without  affecting the liability of the other Guarantor(s).  3. PURPOSE  3.1. Purpose  Each Borrower shall apply all amounts borrowed by it under the Facility towards:  3.1.1. general corporate purposes;  3.1.2. working capital purposes; and/or  3.1.3. capital expenditure purposes.  3.2. Monitoring  No Finance Party is bound to monitor or verify the application of any amount borrowed  pursuant to this Agreement.  4. CONDITIONS OF UTILISATION  4.1. The Borrowers may request a Loan under the Facility by delivering an irrevocable  written Utilisation Request to the Agent not less than 3 (three) Business Days prior to  the date of the requested Loan, specifying the amount of the Loan required (which shall  not be less than US$2 000 000 (US dollars two million)) and the Interest Period  applicable to such Loan. Utilisation Requests will be limited to 3 (three) per month and  10 (ten) Loans in total at any time.  4.2. All monies advanced shall be paid by the Lenders into a Stanbic Ghana bank account  nominated by the Borrowers in the Utilisation Request.  4.3. Initial conditions precedent  No Borrower may deliver a Utilisation Request unless the Agent has received all of the  documents and other evidence listed in Part I of Schedule 2 (Conditions Precedent to  Initial Utilisation) (the "Initial Conditions Precedent") in form and substance  satisfactory to the Agent. The Parties record that the Initial Conditions Precedent were  satisfied (or waived) prior to the first Utilisation of the Facility.  4.4. Further conditions precedent  The Lenders will only be obliged to comply with clause 5.4 (Lenders’ participation) if on  the date of the Utilisation Request and on the proposed Utilisation Date:   





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 26  Execution Version      4.4.1. in the case of a Rollover Loan, no Event of Default is continuing or would  result from the proposed Rollover Loan, and in the case of any other Loan,  no Default is continuing or would result from the proposed Loan; and  4.4.2. the Repeating Representations to be made by each Obligor are true in all  material respects.  5. UTILISATION  5.1. Delivery of a Utilisation Request  A Borrower may utilise the Facility by delivery to the Agent of a duly completed  Utilisation Request not later than the Specified Time.  5.2. Completion of a Utilisation Request  5.2.1. Each Utilisation Request is irrevocable and will not be regarded as having  been duly completed unless:  5.2.1.1. the proposed Utilisation Date is a Business Day within the  Availability Period for the Facility;  5.2.1.2. the currency and amount of the Utilisation comply with  clause 5.3 (Currency and amount); and  5.2.1.3. the proposed Interest Period complies with clause 9 (Interest  Periods).   5.2.2. Only one Loan may be requested in each Utilisation Request.  5.3. Currency and amount  5.3.1. The currency specified in a Utilisation Request must be dollars.  5.3.2. The amount of the proposed Loan must be an amount which is not more  than the Available Commitment, and shall be a minimum of US$2 000 000  (US dollars two million) or, if less, the Available Commitment.  5.4. Lenders’ participation  5.4.1. If the conditions set out in this Agreement have been met, each Lender  shall, subject to clause 6.1 as regards to an automatic refinancing of a  Loan through a Rollover Loan, make its participation in each Loan  available by the Utilisation Date through its Facility Office.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 27  Execution Version      5.4.2. The amount of each Lender’s participation in the Facility will be equal to  the proportion borne by its Available Commitment to the Total Available  Commitment immediately prior to making the Loan.  5.5. Cancellation of Commitment  The Commitments which, at that time, are unutilised, shall be immediately cancelled at  the end of the Availability Period.  6. REPAYMENT  6.1. Each Loan shall be repaid in full on the last day of its Interest Period (save that each  such Loan shall (subject to the terms of this Agreement and to the extent that it was  not repaid in cash on or before the last day of its Interest Period), be automatically  refinanced without the need for the submission of a Utilisation Request as a Rollover  Loan for the next following Interest Period).   6.2. Notwithstanding any other provision of the Finance Documents, all amounts  outstanding under the Finance Documents shall be repaid in full on or before the Final  Maturity Date. Amounts pre-paid may be redrawn (save for mandatory prepayments).  7. PREPAYMENT AND CANCELLATION   Mandatory Prepayment and Cancellation  7.1. Illegality  If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its  obligations as contemplated by this Agreement or to fund or maintain its participation  in any Loan:  7.1.1. that Lender shall promptly notify the Agent upon becoming aware of that  event;  7.1.2. upon the Agent notifying each Borrower, the Commitment of that Lender  will be immediately cancelled; and  7.1.3. each Borrower shall repay that Lender’s participation in the Loans made  to that Borrower on the last day of the Interest Period for each Loan  occurring after the Agent has notified each Borrower or, if earlier, the date  specified by the Lender in the notice delivered to the Agent (being no  earlier than the last day of any applicable grace period permitted by law).  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 28  Execution Version      7.2. Change of control  If Gold Fields Limited ceases to hold at least a 50% (fifty percent) indirect economic  interest in either Borrower:  7.2.1. such Borrower shall promptly notify the Agent upon becoming aware of  that event;   7.2.2. a Lender shall not be obliged to fund a Utilisation (except for a Rollover  Loan) and the Agent and the relevant Borrower shall consult about such  cessation;  7.2.3. if the Majority Lenders so require after a period of 45 (forty five) days from  receipt of the notice referred to in 7.2.1 above, the Agent shall by notice to  the relevant Borrower, (such notice to be delivered no later than 60 (sixty)  days from receipt of the notice referred to in 7.2.1 above), cancel the Total  Commitments and declare all outstanding Loans, together with accrued  interest and all other amounts accrued under the Finance Documents due  and payable within 5 (five) business days, whereupon the Total  Commitments will be cancelled and all such outstanding amounts will  become immediately due and payable at the end of the 5 (five) day period  together with any Break Costs if the repayment is not made on the final  day of an Interest Period;  7.2.4. if the Agent does not serve the notice referred to in clause 7.2.3 above, a  Lender may by notice to the Agent which shall be delivered not earlier than  45 (forty five) days nor later than 60 (sixty) days from receipt of the notice  referred to in 7.2.1 above, whereupon the Agent shall by notice to the  relevant Borrower (such notice to be delivered promptly after receipt of  such Lender notification), cancel the Commitment of that Lender and  declare the participation of that Lender in all outstanding Loans, together  with accrued interest thereon and all other amounts due to such Lender  under the Finance Documents immediately due and payable, whereupon  the Commitment of that Lender will be cancelled and all such outstanding  amounts will become immediately due and payable.  7.3. Distributions  7.3.1. In respect of any Distributions made by any Borrower within a  Measurement Period, if the ratio of Consolidated Net Borrowings to  Consolidated EBITDA in respect of the relevant Measurement Period  exceeds 1:1, then the Lenders shall have the right (Lenders’ Right) to  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 29  Execution Version      reduce the Total Commitment by an amount equal to 50% (fifty percent)  of the amount by which the Distributions exceed 60% (sixty percent) of  Consolidated Profit After Tax for that Measurement Period, provided that:  7.3.1.1. the following amounts in respect of a Measurement Period  may be carried forward as distributable amounts in respect of  any future Measurement Period without triggering the  Lenders’ Right:  7.3.1.1.1. if the ratio of Consolidated Net Borrowings to  Consolidated EBITDA in respect of the  relevant Measurement Period is less than 1:1,  the difference between Consolidated Profit  After Tax and the actual Distributions less  distributed amounts carried forward in  previous Measurement Periods as  contemplated in this clause 7.3.1.1 for that  Measurement Period; or  7.3.1.1.2. if the ratio of Consolidated Net Borrowings to  Consolidated EBITDA in respect of the  relevant Measurement Period exceeds 1:1,  the difference between 50% (fifty percent) of  the Consolidated Profit After Tax and the  actual Distributions, less distributed amounts  carried forward in previous Measurement  Periods as contemplated in this  clause 7.3.1.1, for that Measurement Period.  Any reduction of the Total Commitment under this clause 7.3  shall reduce the Facility rateably under this Agreement.  7.3.2. Distributions means, the declaration and/or payment of any amount or  property, whether directly or indirectly, to any shareholder, or the  distribution of any right or asset to any shareholder, the repayment of  shareholder loan accounts, the payment of interest on shareholders’ loan  accounts, the payment of any consideration pursuant to the  implementation of a repurchase of shares, and the payment of any  consideration pursuant to the implementation of a redemption of shares.  For the purposes of this clause the term "shares" shall include all classes  of shares.  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 30  Execution Version      7.3.3. Consolidated Profit after Tax means, for any Measurement Period, the  aggregate of the Borrowers’ consolidated net profit after tax attributable to  shareholders having adjusted for the after tax effect in respect of the  following items:  7.3.3.1. the unrealised gains and losses on financial instruments and  debt but adjusted to include cash payments and receipts in  relation to such underlying financial instruments;  7.3.3.2. any extraordinary or exceptional items;  7.3.3.3. eliminating the effect of any inter-company transactions  between the Borrowers;  7.3.3.4. share based payments; and  7.3.3.5. any other non-cash item (which excludes the amortisation of  intangible assets and depreciation of tangible assets) that  impacted the net profit after tax.  Voluntary prepayment and cancellation  7.4. Voluntary cancellation  7.4.1. The Borrowers may cancel all or any of the Facility, subject to the giving  of 10 (ten) Business Days’ notice to the Agent (or such shorter period as  the Majority Lenders may agree).   7.4.2. Amounts so cancelled may not be re-instated. Any cancellation under this  clause 7.4 shall reduce the Commitments of the Lenders rateably.  7.4.3. For the avoidance of doubt the provisions of clause 7.4.1 shall not apply  to a Refinancing.  7.5. Voluntary Prepayment of Loans  Subject to clause 7.6, the Borrower to which a Loan has been made may, if it gives the  Agent not less than 3 (three) Business Days’ prior notice (or such shorter period as the  Majority Lenders may agree), prepay the whole or any part of a Loan (but if in part,  being an amount that reduces the Loan by a minimum amount of US$10 000 000 (US  dollars ten million)).  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 31  Execution Version      7.6. Voluntary Prepayment and Cancellation: Permitted Refinancing  The Borrowers may, on not less than 10 (ten) Business Days’ prior notice to the Agent  (or such shorter period as the Agent may agree), prepay all or part of the outstanding  Loans in respect of the Facility at that time utilising the proceeds raised by any Borrower  pursuant to a Permitted Refinancing and the Facility (in whole or part) shall be  cancelled to the extent of that prepayment. Such notice shall specify the date on which  the Borrowers intend to prepay the outstanding Loans in full or part and the delivery of  such notice shall oblige the Borrowers to prepay the outstanding Loans in full or in part  and to cancel the Facility (or the applicable portion thereof) on such date.  7.7. Right of repayment and cancellation in relation to a single Lender  7.7.1. If:  7.7.1.1. any sum payable to any Lender by an Obligor is required to be  increased under clause 12.1.3 (Tax gross-up); or  7.7.1.2. any Lender claims indemnification from one or more of the  Borrowers under clause 12.2 (Tax indemnity) or clause 13.1  (Increased costs),  the Borrowers may, whilst (in the case of clauses 7.7.1.1 and 7.7.1.2  above) the circumstance giving rise to the requirement for that increase or  indemnification continues, give the Agent notice of cancellation of the  Commitment of that Lender and their intention to procure the repayment  of that Lender’s participation in the Loans.  7.7.2. On receipt of a notice of cancellation referred to in clause 7.7.1 above, the  Commitment of that Lender shall immediately be reduced to zero  whereupon the Total Commitments shall be reduced by the same amount.  7.7.3. On the last day of each Interest Period which ends after the Borrowers  have given notice of cancellation under clause 7.7.1 above (or, if earlier,  the date specified by the Borrowers in that notice), each Borrower to which  a Loan is outstanding shall repay that Lender’s participation in that Loan.  7.8. Restrictions  7.8.1. Any notice of cancellation or prepayment given by any Party under this  clause 7 shall be irrevocable and, unless a contrary indication appears in  this Agreement, shall specify the date or dates upon which the relevant  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 32  Execution Version      cancellation or prepayment is to be made and the amount of that  cancellation or prepayment.  7.8.2. Save as provided for elsewhere in this Agreement, any prepayment under  this Agreement shall be made together with accrued interest on the  amount prepaid and, subject to any Break Costs, without premium or  penalty.  7.8.3. Unless a contrary indication appears in this Agreement any part of any  Loan which is prepaid may be reborrowed in accordance with the terms of  this Agreement.  7.8.4. The Borrowers shall not repay or prepay all or any part of the Loans or  cancel all or any part of the Commitments except at the times and in the  manner expressly provided for in this Agreement.  7.8.5. No amount of the Total Commitments cancelled under this Agreement  may be subsequently reinstated.  7.8.6. At the end of the Availability Period, the Total Commitments shall be  reduced to zero.  7.8.7. If the Agent receives a notice under this clause 7 it shall promptly forward  a copy of that notice to either the Borrowers or the affected Lender, as  appropriate.  8. INTEREST  8.1. Calculation of interest  8.1.1. The rate of interest on each Loan for each Interest Period is the  percentage rate per annum which is the aggregate of the applicable:  8.1.1.1. Margin; and  8.1.1.2. LIBOR,  (together the "Interest Rate").  8.1.2. Interest will accrue on the Loans outstanding at the Interest Rate and be  calculated on the basis of the actual number of days elapsed in a year of  360 (three hundred and sixty) days.  8.2. Payment of interest  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 33  Execution Version      Each Borrower to which a Loan has been made shall pay accrued interest on that Loan  in arrears on the last day of each Interest Period (and, if the Interest Period is longer  than six Months, on the dates falling at six Monthly intervals after the first day of the  Interest Period).  8.3. Default interest  8.3.1. If an Obligor fails to pay any amount payable by it under a Finance  Document on its due date, interest shall accrue on the overdue amount  from the due date up to the date of actual payment (both before and after  judgment) at a rate which, subject to clause 8.3.2 below, is 2% (two)  percent higher than the rate which would have been payable if the overdue  amount had, during the period of non-payment, constituted a Loan in the  currency of the overdue amount for successive Interest Periods, each of  a duration selected by the Agent (acting reasonably). Any interest accruing  under this clause 8.3 shall be immediately payable by the Obligor on  demand by the Agent.  8.3.2. If any overdue amount consists of all or part of a Loan which became due  on a day which was not the last day of an Interest Period relating to that  Loan:  8.3.2.1. the first Interest Period for that overdue amount shall have a  duration equal to the unexpired portion of the current Interest  Period relating to that Loan; and  8.3.2.2. the rate of interest applying to the overdue amount during that  first Interest Period shall be 2% (two percent) higher than the  rate which would have applied if the overdue amount had not  become due.  8.3.3. Default interest (if unpaid) arising on an overdue amount will be  compounded with the overdue amount at the end of each Interest Period  applicable to that overdue amount but will remain immediately due and  payable.  8.4. Notification of rates of interest  The Agent shall promptly notify the Lenders and the relevant Borrower of the  determination of a rate of interest under this Agreement.  9. INTEREST PERIODS  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 34  Execution Version      9.1. Selection of Interest Periods  9.1.1. A Borrower may select an Interest Period for a Loan in the Utilisation  Request for that Loan.  9.1.2. Subject to this clause 9, a Borrower may select an Interest Period of  1 (one), 3 (three) or 6 (six) Months or any other period agreed between  the Borrower and the Agent (acting on the instructions of all the Lenders),  provided that no Interest Period shall be longer than six Months.  9.1.3. An Interest Period for a Loan shall not extend beyond the Final Maturity  Date.  9.1.4. Each Interest Period for a Loan shall start on the Utilisation Date for that  Loan.  9.1.5. A Loan has one Interest Period only.  9.2. Non-Business Days  If an Interest Period would otherwise end on a day which is not a Business Day, that  Interest Period will instead end on the next Business Day in that calendar Month (if  there is one) or the preceding Business Day (if there is not).  10. CHANGES TO THE CALCULATION OF INTEREST  10.1. Absence of quotations  Subject to clause 10.2 (Market disruption), if LIBOR is to be determined by reference  to the Reference Banks but a Reference Bank does not supply a quotation by the  Specified Time on the Quotation Day, the applicable LIBOR shall be determined on the  basis of the quotations of the remaining Reference Banks.  10.2. Market disruption  10.2.1. If a Market Disruption Event occurs in relation to a Loan for any Interest  Period, then the rate of interest on each Lender’s share of that Loan for  the Interest Period shall be the percentage rate per annum which is the  sum of:  10.2.1.1. the Margin; and  10.2.1.2. the rate notified to the Agent by that Lender as soon as  practicable and in any event not later than 5 (five) Business  Days before interest is due to be paid in respect of that Interest  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 35  Execution Version      Period (provided that if such Lender is unable to notify the  Agent of such rate not later than 5 (five) Business Days before  interest is due to be paid in respect of that Interest Period, it  shall do so before interest is due to be paid in respect of that  Interest Period), to be that which expresses as a percentage  rate per annum the cost to that Lender of funding its  participation in that Loan from whatever source it may  reasonably select.  10.2.2. In this Agreement Market Disruption Event means:  10.2.2.1. at or about noon on the Quotation Day for the relevant Interest  Period the Screen Rate is not available and none or only one  of the Reference Banks supplies a rate to the Agent to  determine LIBOR for dollars and for the relevant Interest  Period; or  10.2.2.2. before close of business in London on the Quotation Day for  the relevant Interest Period, the Agent receives notifications  from a Lender or Lenders that the cost to it of obtaining  matching deposits in the Relevant Interbank Market would be  in excess of LIBOR; or   10.2.2.3. a Screen Rate Replacement Event has occurred, until such  time as a new rate is agreed in accordance with clause 34.3  (Replacement of Screen Rate).  10.3. Alternative basis of interest or funding  10.3.1. If a Market Disruption Event occurs and the Agent or the Borrowers so  require, the Agent and the Borrowers shall enter into negotiations (for a  period of not more than 30 (thirty) days) with a view to agreeing a  substitute basis for determining the rate of interest.  10.3.2. Any alternative basis agreed pursuant to clause 10.3.1 above shall, with  the prior consent of all the Lenders, be binding on all Parties.  10.4. Break Costs  10.4.1. Each Borrower shall, within 3 (three) Business Days of demand by a  Finance Party, pay to that Finance Party its Break Costs attributable to all  or any part of a Loan or Unpaid Sum being paid by that Borrower on a day  other than the last day of an Interest Period for that Loan or Unpaid Sum.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 36  Execution Version      10.4.2. Each Lender shall, as soon as reasonably practicable after a demand by  the Agent, provide a certificate confirming the amount of its Break Costs  for any Interest Period in which they accrue.  11. FEES  11.1. Commitment fee  11.1.1. Subject to clause 11.1.3 below, the Borrowers shall pay to the Agent (for  the account of each Lender) a commitment fee in dollars which shall be  computed at the rate of 90 (ninety) basis points per annum on that  Lender’s Available Commitment during the Availability Period.  11.1.2. The accrued commitment fee is payable on the last day of each  successive period of three Months which ends during the Availability  Period, on the last day of the Availability Period and, if cancelled in full, on  the cancelled amount of the relevant Lender’s Commitment at the time the  cancellation is effective.  11.1.3. No commitment fees accrued under and in terms of clause 11.1.1 above  during any Interest Period shall be payable if the average outstanding  balance of the Loans for such Interest Period exceeded 80% (eighty  percent) of the Total Commitments.  12. TAX GROSS UP AND INDEMNITIES  12.1. Tax gross-up  12.1.1. Each Obligor shall make all payments to be made by it without any Tax  Deduction, unless a Tax Deduction is required by law.  12.1.2. Each Borrower shall promptly upon becoming aware that it or an Obligor  must make a Tax Deduction (or that there is any change in the rate or the  basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender  shall notify the Agent on becoming so aware in respect of a payment  payable to that Lender. If the Agent receives such notification from a  Lender it shall notify the Borrowers and, if applicable, that Obligor.  12.1.3. If a Tax Deduction is required by law to be made by an Obligor, the amount  of the payment due from that Obligor shall be increased to an amount  which (after making any Tax Deduction) leaves an amount equal to the  payment which would have been due if no Tax Deduction had been  required.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 37  Execution Version      12.1.4. If an Obligor is required to make a Tax Deduction, that Obligor shall make  that Tax Deduction and any payment required in connection with that Tax  Deduction within the time allowed and in the minimum amount required by  law.  12.1.5. Within 30 (thirty) days of making either a Tax Deduction or any payment  required in connection with that Tax Deduction, the Obligor making that  Tax Deduction shall deliver to the Agent for the Finance Party entitled to  the payment evidence reasonably satisfactory to that Finance Party that  the Tax Deduction has been made or (as applicable) any appropriate  payment paid to the relevant taxing authority.  12.2. Tax indemnity  12.2.1. The Borrowers shall (within 3 (three) Business Days of demand by the  Agent) pay to a Finance Party an amount equal to the loss, liability or cost  which that Finance Party determines (in its absolute discretion) will be or  has been (directly or indirectly) suffered for or on account of Tax by that  Finance Party in respect of a Finance Document.  12.2.2. Clause 12.2.1 above shall not apply:  12.2.2.1. with respect to any Tax assessed on a Finance Party:  12.2.2.1.1. under the law of the jurisdiction in which that  Finance Party is incorporated or, if different,  the jurisdiction (or jurisdictions) in which that  Finance Party is treated as resident for tax  purposes; or  12.2.2.1.2. under the law of the jurisdiction in which that  Finance Party’s Facility Office is located in  respect of amounts received or receivable in  that jurisdiction,  if that Tax is imposed on or calculated by reference to the net  income received or receivable (but not any sum deemed to be  received or receivable) by that Finance Party; or  12.2.2.2. to the extent a loss, liability or cost is compensated for by an  increased payment under clause 12.1 (Tax gross-up).  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 38  Execution Version      12.2.3. A Finance Party making, or intending to make a claim under clause 12.2.1  above shall promptly notify the Agent of the event which will give, or has  given, rise to the claim, following which the Agent shall notify the  Borrowers.  12.2.4. A Finance Party shall, on receiving a payment from an Obligor under this  clause 12.2, notify the Agent.  12.3. Tax Credit  If an Obligor makes a Tax Payment and the relevant Finance Party determines (in its  absolute discretion) that:  12.3.1. a Tax Credit is attributable either to an increased payment of which that  Tax Payment forms part, or to that Tax Payment; and  12.3.2. that Finance Party has obtained, utilised and retained that Tax Credit, the  Finance Party shall pay an amount to such Obligor which that Finance  Party determines (in its absolute discretion) will leave it (after that  payment) in the same after-Tax position as it would have been in had the  Tax Payment not been required to be made by such Obligor.  12.4. Stamp taxes  The Borrowers shall pay and, within 3 (three) Business Days of demand, indemnify  each Finance Party against any cost, loss or liability that Finance Party incurs in relation  to all stamp duty, registration and other similar Taxes payable in respect of any Finance  Document.  12.5. Value added tax  12.5.1. All amounts set out, or expressed to be payable under a Finance  Document by any Party to a Finance Party which (in whole or in part)  constitute the consideration for VAT purposes shall be deemed to be  exclusive of any VAT which is chargeable on such supply, and  accordingly, subject to clause 12.5.3 below, if VAT is chargeable on any  supply made by any Finance Party to any Party under a Finance  Document, that Party shall pay to the Finance Party (in addition to and at  the same time as paying the consideration) an amount equal to the amount  of the VAT (and such Finance Party shall promptly provide an appropriate  VAT invoice to such Party).  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 39  Execution Version      12.5.2. If VAT is chargeable on any supply made by any Finance Party (the  Supplier) to any other Finance Party (the Recipient) under a Finance  Document, and any Party (the Relevant Party) is required by the terms of  any Finance Document to pay an amount equal to the consideration for  such supply to the Supplier (rather than being required to reimburse the  Recipient in respect of that consideration), such Party shall also pay to the  Supplier (in addition to and at the same time as paying such amount) an  amount equal to the amount of such VAT. The Recipient will promptly pay  to the Relevant Party an amount equal to any credit or repayment from the  relevant tax authority which it reasonably determines relates to the VAT  chargeable on that supply.  12.5.3. Where a Finance Document requires any Party to reimburse a Finance  Party for any costs or expenses, that Party shall also at the same time pay  and indemnify the Finance Party against all VAT incurred by the Finance  Party in respect of the costs or expenses to the extent that the Finance  Party reasonably determines that neither it nor any other member of any  group of which it is a member for VAT purposes is entitled to credit or  repayment from the relevant tax authority in respect of the VAT.  13. INCREASED COSTS  13.1. Increased costs  13.1.1. Subject to clause 13.3 (Exceptions) the Borrowers shall, within 5 (five)  Business Days of a demand by the Agent, pay for the account of a Finance  Party the amount of any Increased Costs incurred by that Finance Party  or any of its Affiliates as a result of (i) the introduction of or any change in  (or in the interpretation, administration or application of) any law or  regulation or (ii) compliance with any law or regulation made after the date  of this Agreement.  13.1.2. In this Agreement "Increased Costs" means:  13.1.2.1. a reduction in the rate of return from the Facility or on a  Finance Party’s (or its Affiliate’s) overall capital;  13.1.2.2. an additional or increased cost; or  13.1.2.3. a reduction of any amount due and payable under any Finance  Document,  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 40  Execution Version      which is incurred or suffered by a Finance Party or any of its Affiliates to  the extent that it is attributable to that Finance Party having entered into  its Commitment or funding or performing its obligations under any Finance  Document.  13.2. Increased cost claims  13.2.1. A Finance Party intending to make a claim pursuant to clause 13.1  (Increased costs) shall notify the Agent of the event giving rise to the claim,  following which the Agent shall promptly notify the Borrowers.  13.2.2. Each Finance Party shall, as soon as practicable after a demand by the  Agent, provide a certificate confirming the amount of its Increased Costs.  13.3. Exceptions  Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is:  13.3.1. attributable to a Tax Deduction required by law to be made by an Obligor;  13.3.2. compensated for by clause 12.2 (Tax indemnity) (or would have been  compensated for under clause 12.2 (Tax indemnity) but was not so  compensated solely because any of the exclusions in clause 12.2.2 (Tax  indemnity) applied); or  13.3.3. attributable to the wilful breach by the relevant Finance Party or its  Affiliates of any law or regulation.  14. OTHER INDEMNITIES  14.1. Currency indemnity  14.1.1. If any sum due from an Obligor under the Finance Documents (a Sum), or  any order, judgment or award given or made in relation to a Sum, has to  be converted from the currency (the First Currency) in which that Sum is  payable into another currency (the Second Currency) for the purpose of:  14.1.1.1. making or filing a claim or proof against that Obligor; or  14.1.1.2. obtaining or enforcing an order, judgment or award in relation  to any litigation or arbitration proceedings,  that Obligor shall as an independent obligation, within 5 (five) Business  Days of demand, indemnify each Finance Party to whom that Sum is due  against any cost, loss or liability arising out of or as a result of the  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 41  Execution Version      conversion including any discrepancy between (A) the rate of exchange  used to convert that Sum from the First Currency into the Second Currency  and (B) the rate or rates of exchange available to that person at the time  of its receipt of that Sum.  14.1.2. Each Obligor waives any right it may have in any jurisdiction to pay any  amount under the Finance Documents in a currency or currency unit other  than that in which it is expressed to be payable.  14.2. Other indemnities  The Borrowers shall (or shall procure that an Obligor will), within 5 (five) Business Days  of demand, indemnify each Finance Party against any cost, loss or liability incurred by  that Finance Party as a result of:  14.2.1. the occurrence of any Event of Default;  14.2.2. a failure by an Obligor to pay any amount due under a Finance Document  on its due date, including without limitation, any cost, loss or liability arising  as a result of clause 27 (Sharing Among the Finance Parties);  14.2.3. funding, or making arrangements to fund, its participation in a Loan  requested by a Borrower in a Utilisation Request but not made by reason  of the operation of any one or more of the provisions of this Agreement  (other than by reason of default or negligence by that Finance Party  alone); or  14.2.4. a Loan (or part of a Loan) not being prepaid in accordance with a notice  of prepayment given by a Borrower.  14.3. Indemnity to the Agent  The Borrowers shall promptly indemnify the Agent against any cost, loss or liability  incurred by the Agent (acting reasonably) as a result of:  14.3.1. investigating any event which it reasonably believes is a Default; or  14.3.2. acting or relying on any notice, request or instruction which it reasonably  believes to be genuine, correct and appropriately authorised.  15. MITIGATION BY THE LENDERS  15.1. Mitigation  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 42  Execution Version      15.1.1. Each Finance Party shall, in consultation with the Borrowers, take all  reasonable steps to mitigate any circumstances which arise and which  would result in any amount becoming payable under or pursuant to, or  cancelled pursuant to, any of clause 7.1 (Illegality), clause 12 (Tax Gross- up and Indemnities) or clause 13 (Increased Costs) including (but not  limited to) transferring its rights and obligations under the Finance  Documents to another Affiliate or Facility Office.  15.1.2. Clause 15.1.1 above does not in any way limit the obligations of any  Obligor under the Finance Documents.  15.2. Limitation of liability  15.2.1. The Borrowers shall indemnify each Finance Party for all costs and  expenses reasonably incurred by that Finance Party as a result of steps  taken by it under clause 15.1 (Mitigation).  15.2.2. A Finance Party is not obliged to take any steps under clause 15.1  (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to  do so might be prejudicial to it.  16. COSTS AND EXPENSES  16.1. Transaction expenses  The Borrower shall, promptly within 5 (five) Business Days of demand, pay the Agent  the amount of all costs and expenses (including legal fees but subject to any agreed  cap and inclusive of VAT or similar taxes) reasonably incurred by any of them in  connection with the negotiation, preparation, printing, execution and syndication of:  16.1.1. this Agreement and any other documents referred to in this Agreement;  and  16.1.2. any other Finance Documents executed after the date of this Agreement.  16.2. Amendment costs  If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is  required pursuant to clause 28.9 (Change of currency), the Borrowers shall, within  5 (five) Business Days of demand, reimburse each of the Agent for the amount of all  costs and expenses (including legal fees) reasonably incurred by the Agent in  responding to, evaluating, negotiating or complying with that request or requirement.  16.3. Enforcement costs  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 43  Execution Version      The Borrowers shall, within 5 (five) Business Days of demand, pay to each Finance  Party the amount of all costs and expenses (including legal fees) incurred by that  Finance Party (acting reasonably in the case of (ii)) in connection with (i) the  enforcement of, or (ii) the preservation of any rights under any Finance Document.  17. GUARANTEE AND INDEMNITY  17.1. Guarantee and indemnity  Each Guarantor irrevocably and unconditionally jointly and severally:  17.1.1. guarantees to each Finance Party punctual performance by each  Borrower of all that Borrower’s obligations under the Finance Documents;  17.1.2. undertakes with each Finance Party that whenever a Borrower does not  pay any amount when due under or in connection with any Finance  Document, that Guarantor shall immediately on demand pay that amount  as if it was the principal obligor; and  17.1.3. indemnifies each Finance Party immediately on demand (and shall make  the relevant payment within 5 (five) Business Days of such demand)  against any cost, loss or liability suffered by that Finance Party if any  obligation guaranteed by it is or becomes unenforceable, invalid or illegal.  The amount of the cost, loss or liability shall be equal to the amount which  that Finance Party would otherwise have been entitled to recover.  This guarantee is in addition to and is not in any way prejudicial to any other guarantee  now or subsequently held by and Finance Party.  17.2. Continuing guarantee  This guarantee is a continuing guarantee and will extend to the ultimate balance of  sums payable by any Obligor under the Finance Documents, regardless of any  intermediate payment or discharge in whole or in part.  17.3. Reinstatement  If any payment by an Obligor or any discharge given by a Finance Party (whether in  respect of the obligations of any Obligor or any security for those obligations or  otherwise) is avoided or reduced as a result of insolvency or any similar event:  17.3.1. the liability of each Obligor shall continue as if the payment, discharge,  avoidance or reduction had not occurred; and  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 44  Execution Version      17.3.2. each Finance Party shall be entitled to recover the value or amount of that  security or payment from each Obligor, as if the payment, discharge,  avoidance or reduction had not occurred.  17.4. Waiver of defences  The obligations of each Guarantor under this clause 17 will not be affected by an act,  omission, matter or thing which, but for this clause, would reduce, release or prejudice  any of its obligations under this clause 17 (without limitation and whether or not known  to it or any Finance Party) including:  17.4.1. any time, waiver or consent granted to, or composition with, any Obligor  or other person;  17.4.2. the release of any other Obligor or any other person under the terms of  any composition or arrangement with any creditor of any member of the  Group;  17.4.3. the taking, variation, compromise, exchange, renewal or release of, or  refusal or neglect to perfect, take up or enforce, any rights against, or  security over assets of, any Obligor or other person or any non- presentation or non-observance of any formality or other requirement in  respect of any instrument or any failure to realise the full value of any  security;  17.4.4. any incapacity or lack of power, authority or legal personality of or  dissolution or change in the members or status of an Obligor or any other  person;  17.4.5. any amendment, novation, supplement, extension, restatement (however  fundamental) or replacement of a Finance Document or any other  document or security;  17.4.6. any unenforceability, illegality or invalidity of any obligation of any person  under any Finance Document or any other document or security; or  17.4.7. any insolvency or similar proceedings.  17.5. Immediate recourse  Each Guarantor waives any right it may have of first requiring any Finance Party (or  any trustee or agent on its behalf) to proceed against or enforce any other rights or  security or claim payment from any person before claiming from that Guarantor under  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 45  Execution Version      this clause 17. This waiver applies irrespective of any law or any provision of a Finance  Document to the contrary.  17.6. Appropriations  Until all amounts which may be or become payable by the Obligors under or in  connection with the Finance Documents have been irrevocably paid in full, each  Finance Party (or any trustee or agent on its behalf) may:  17.6.1. refrain from applying or enforcing any other moneys, security or rights held  or received by that Finance Party (or any trustee or agent on its behalf) in  respect of those amounts, or apply and enforce the same in such manner  and order as it sees fit (whether against those amounts or otherwise) and  no Guarantor shall be entitled to the benefit of the same; and  17.6.2. hold in an interest-bearing suspense account any moneys received from  any Guarantor or on account of any Guarantor’s liability under this  clause 17.  17.7. Deferral of Guarantors’ rights  Until all amounts which may be or become payable by the Obligors under or in  connection with the Finance Documents have been irrevocably paid in full and unless  the Agent otherwise directs, no Guarantor will exercise any rights which it may have by  reason of performance by it of its obligations under the Finance Documents:  17.7.1. to be indemnified by an Obligor;  17.7.2. to claim any contribution from any other guarantor of any Obligor’s  obligations under the Finance Documents; and/or  17.7.3. to take the benefit (in whole or in part and whether by way of subrogation  or otherwise) of any rights of the Finance Parties under the Finance  Documents or of any other guarantee or security taken pursuant to, or in  connection with, the Finance Documents by any Finance Party.  17.8. Release of Guarantors’ rights of contribution  If any Guarantor (a Retiring Guarantor) ceases to be a Guarantor in accordance with  the terms of the Finance Documents for the purpose of any sale or other disposal of  that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a  Guarantor:  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 46  Execution Version      17.8.1. that Retiring Guarantor is released by each other Guarantor from any  liability (whether past, present or future and whether actual or contingent)  to make a contribution to any other Guarantor arising by reason of the  performance by any other Guarantor of its obligations under the Finance  Documents; and  17.8.2. each other Guarantor waives any rights it may have by reason of the  performance of its obligations under the Finance Documents to take the  benefit (in whole or in part and whether by way of subrogation or  otherwise) of any rights of the Finance Parties under any Finance  Document or of any other security taken pursuant to, or in connection with,  any Finance Document where such rights or security are granted by or in  relation to the assets of the Retiring Guarantor.  18. REPRESENTATIONS  Each Obligor makes the representations and warranties set out in this clause 18 to each  Finance Party.  18.1. Status  18.1.1. It is a limited liability company, duly incorporated and validly existing under  the law of its jurisdiction of incorporation.  18.1.2. It has the power to own its assets and carry on its business as it is being  conducted or is contemplated to be conducted.  18.2. Power and authority  It has the power to enter into and perform, and has taken all necessary action to  authorise its entry into, and performance of, the Finance Documents to which it is party  and the transactions contemplated by those Finance Documents.  18.3. Binding obligations  The obligations expressed to be assumed by it in each Finance Document to which it  is a party are, subject to any general principles of law as at the date of this Agreement  limiting its obligations, which are specifically referred to in any legal opinion delivered  pursuant to clause 4 (Conditions of Utilisation) or clause 24 (Changes to the Obligors),  legal, valid, binding and enforceable obligations.  18.4. Non-conflict with other obligations  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 47  Execution Version      The entry into and performance by it of, and the transactions contemplated by, the  Finance Documents to which it is a party do not and will not conflict with:  18.4.1. any law applicable to it;  18.4.2. its Constitutional Documents; or  18.4.3. any material agreement or instrument binding upon it or any of its assets.  18.5. Authorisations  All authorisations required:  18.5.1. to enable it lawfully to enter into, exercise its rights and comply with its  obligations under the Finance Documents to which it is a party and to  ensure that the obligations expressed to be assumed by it thereunder are  legal, valid, binding and enforceable; and  18.5.2. to make the Finance Documents to which it is a party admissible in  evidence in its jurisdiction of incorporation,  have been obtained or effected and are in full force and effect.  18.6. Governing Law and Enforcement  Subject to any general principles of law as at the date of this Agreement set out in any  legal opinion delivered pursuant to clause 4 (Conditions of Utilisation) or clause 24  (Changes to the Obligors):  18.6.1. the choice of the English law as the governing law of the Finance  Documents will be recognised and enforced in its jurisdiction of  incorporation; and  18.6.2. any judgment obtained in England in relation to a Finance Document will  be recognised and enforced in its jurisdiction of incorporation, subject to  registration of such judgment in Ghana within 6 (six) years of it being  granted.  18.7. Deduction of Tax  Other than deductions in respect of withholding tax, it is not required under the law of  its jurisdiction of incorporation to make any deduction for or on account of Tax from any  payment it may make under any Finance Document.  18.8. No default  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 48  Execution Version      18.8.1. No Default is continuing or might reasonably be expected to result from  the making of any Utilisation.  18.8.2. It is not, nor is it likely to be as a result of entering into and performing its  obligations under the Finance Documents, in violation of any law or in  breach of or in default under any agreement to which it is a party or which  is binding on it or any of its assets to an extent or in a manner which could  reasonably be expected to have a Material Adverse Effect.  18.9. No misleading information  18.9.1. To the best of its knowledge and belief (having made due enquiry), all  written information supplied by it to the Finance Parties and the Agent in  connection with this Agreement was true and accurate in all material  respects as at the date it was given and was not misleading in any material  respect at such date.  18.9.2. It has not knowingly withheld any information which, if disclosed, could  reasonably be expected materially and adversely to affect the decision of  the Finance Parties in considering whether or not to provide finance to  each Borrower.  18.10. Pari passu ranking  Its payment obligations under the Finance Documents rank at least pari passu with the  claims of all its other unsecured and unsubordinated creditors, except for obligations  mandatorily preferred by law applying to companies generally in the jurisdiction of its  incorporation.  18.11. No proceedings pending or threatened  No litigation, arbitration or administrative proceedings of or before any court, arbitral  body or government agency which, if adversely determined, might reasonably be  expected to have a Material Adverse Effect have (to the best of its knowledge and  belief) been started or threatened against it.  18.12. No winding-up  No Material Group Company has taken any corporate action, nor have any other steps  been taken or legal proceedings started or (to the best of its knowledge and belief, after  due enquiry) threatened against any Material Group Company, for its winding-up,  dissolution, administration or re-organisation or for the enforcement of any  Encumbrance over all or any of its revenues or assets or for the appointment of a  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 49  Execution Version      receiver, administrator, administrative receiver, conservator, custodian, trustee or  similar officer of it or of all or any of its assets which could reasonably be expected to  have a Material Adverse Effect.  18.13. No encumbrances  18.13.1. No Encumbrance exists over all or any of the assets of any Material Group  Company except for Permitted Encumbrances.  18.13.2. No Encumbrance would arise as a result of the execution of and  performance of its rights and obligations under the Finance Documents,  save for Permitted Encumbrances.  18.14. Assets  It and each Material Group Company has good title to or validly leases or licenses all  of the assets necessary and has all consents and/or authorisations necessary to carry  on its business as conducted to the extent that failure to comply with this clause 18.14  could reasonably be expected to have a Material Adverse Effect.  18.15. Insurance  Each Material Group Company maintains insurances on and in relation to its business  and assets against those risks and to the extent as is usual for companies in the  jurisdiction in which it conducts its business carrying on substantially similar business  in such jurisdiction.  18.16. Environmental Claims  No Environmental Claim (not of a frivolous or vexatious nature) has been commenced  or (to the best of its knowledge and belief) is threatened against any Material Group  Company where that claim would be reasonably likely, if determined against that  Material Group Company, to have a Material Adverse Effect.  18.17. No Material Adverse Effect  There has been no change in the business, condition (financial or otherwise),  operations, performance, properties or prospects of the Obligors or the Group (taken  as a whole) since the date of the Original Financial Statements which could reasonably  be expected to have a Material Adverse Effect.   18.18. Tax  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 50  Execution Version      It is not in breach of any of the material provisions of any law relating to the conduct of  its business and activities, including, but not limited to, any Tax law or regulations and  no claims in excess of US$5 000 000 (US dollars five million) by any relevant  governmental authority or body is pending or (to the best of its knowledge, having made  diligent inquiry) threatened against it, except to the extent that:  18.18.1. payment is being contested in good faith;  18.18.2. it has maintained adequate reserves for such claims; and  18.18.3. payment can be lawfully withheld.  18.19. Sanctions  Neither the Obligors nor any Subsidiary of the Obligors, nor any director, employee or  officer of the Obligors or any Subsidiary of the Obligors, nor to the Obligors’ actual  knowledge and belief, any agent, affiliate or representative of the Obligors or any  Subsidiary is an individual or entity currently the subject or target of any Sanctions (in  place as at the Amendment and Restatement Signature Date) nor is the Obligors or  any Subsidiary of the Obligors located, organised, resident or operating in any  Sanctioned Country (designated as such as at the Amendment and Restatement  Signature Date).  18.20. Anti-corruption law  Each Material Group Company has conducted its businesses in compliance with the  Applicable Anti-Corruption Laws and has instituted policies and procedures designed  to promote and achieve compliance with such laws.  18.21. Times when representation made  18.21.1. All the representations and warranties in this clause 18 are made by each  Obligor on the Amendment and Restatement Signature Date (other than  clause 18.9.1 (No misleading information) which is deemed to be made on  the date the Information is provided by the relevant Obligor).  18.21.2. The Repeating Representations are deemed to be made by each Obligor  (by reference to the facts and circumstances then existing) on the date of  each Utilisation Request and the first day of each Interest Period.  18.22. Reliance  The Finance Parties have entered into the Finance Documents to which each of them  is a party on the strength of, and relying on, the representations and warranties set out  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 51  Execution Version      in clause 18, each of which shall be deemed to be a separate representation and  warranty given without prejudice to any other representation or warranty and deemed  to be a material representation inducing the Finance Parties to enter into the Finance  Documents to which each of them is party.  19. UNDERTAKINGS  The undertakings in this clause 19 are given in favour of each Finance Party and remain in  force from the Amendment and Restatement Signature Date for so long as any amount is  outstanding under the Finance Documents or any Commitment is in force.  19.1. Financial statements  The Borrowers shall supply to the Agent:  19.1.1. as soon as the same become available, but in any event within 120 (one  hundred and twenty) days after the end of each of its Financial Years, the  audited consolidated financial statements of each Borrower for that  Financial Year; and  19.1.2. as soon as the same become available, but in any event within 60 (sixty)  days after the first 6 (six) months of its Financial Years the unaudited  consolidated financial statements of each Borrower for the first 6 (six)  month period of that Financial Year.  19.2. Compliance Certificate  19.2.1. The Borrowers shall supply to the Agent, with each set of consolidated  financial statements delivered pursuant to clauses 19.1.1 and 19.1.2  (Financial Statements), a single Compliance Certificate executed by both  Borrowers setting out (in reasonable detail) computations as to  compliance with clause 20 (Financial Covenants) as at the date as at  which those financial statements were drawn up.  19.2.2. Each Compliance Certificate shall be signed by 2 (two) directors of the  relevant Borrower and, if required to be delivered with the audited  consolidated financial statements delivered pursuant to clause 19.1.1  (Financial statements), the Lenders, acting reasonably, may require such  Compliance Certificate to be signed by the Auditors.  19.3. Requirements as to financial statements  19.3.1. Each set of financial statements delivered by a Borrower pursuant to  clause 19.1 (Financial statements) shall be certified by a director of the  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 52  Execution Version      relevant company as fairly representing its financial condition as at the  date as at which those financial statements were drawn up.  19.3.2. Subject to clause 19.3.3, each Borrower shall procure that each set of  financial statements delivered pursuant to clause 19.1 (Financial  statements) is prepared in accordance with GAAP, the requirements of its  jurisdiction of incorporation and accounting practices and financial  reference periods, in each case consistent with those applied in the  preparation of the Original Financial Statements, unless such Borrower  notifies the Agent that in relation to any sets of financial statements, there  has been a change in GAAP or the accounting practices or reference  periods and its Auditors delivers to the Agent:  19.3.2.1. a description of any change necessary for those financial  statements to reflect GAAP, accounting practices and  reference periods upon which the Original Financial  Statements were prepared; and  19.3.2.2. sufficient information, in form and substance as may be  reasonably required by the Agent, to enable the Agent to  determine whether clause 20 (Financial Covenants) has been  complied with and make an accurate comparison between the  financial position indicated in those financial statements and  the Original Financial Statements.  19.3.3. There shall be no requirement for any Borrower to notify the Agent  pursuant to clause 19.3.2 that there has been a change in GAAP as a  result of the implementation of IFRS 16 since the date of the Original  Financial Statements nor to provide any of the items referred to in clauses  19.3.2.1 and 19.3.2.2 in relation to the implementation of IFRS 16 and  each set of financial statements delivered pursuant to clause 19.1  (Financial statements) shall, subject to clause 19.4 (IFRS 16 treatment),  be prepared taking into account the implementation of IFRS 16.  19.3.4. If either Borrower notifies the Agent of a change in accordance with clause  19.3.2, then the Borrowers and the Agent shall enter into negotiations in  good faith with a view to agreeing:  19.3.4.1. whether or not the change might result in material alteration in  the commercial effect of any of the terms of this Agreement or  any other Finance Document; and  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 53  Execution Version      19.3.4.2. if so, any amendments to this Agreement or any other Finance  Document which may be necessary to ensure that the change  does not result in any material alteration in the commercial  effect of those terms, and if any amendments are agreed they  shall take effect and be binding on each of the Parties in  accordance with their terms.  19.3.5. Any reference in this Agreement to "financial statements" shall be  construed as a reference to those financial statements as the same may  be adjusted under this clause 19.3 to reflect the basis upon which the  Original Financial Statements were prepared.  19.4. IFRS 16 treatment  19.4.1. Either Borrower may, at any time, deliver to the Agent a notice (the “IFRS  16 Notice”) stating:  19.4.1.1. that it wishes to amend this Agreement and/or any other  Finance Document in order to ensure compliance with any  financial covenant; basket; de-minimis amount; threshold;  calculation; and/or other requirement, representation or  undertaking in connection with the adoption of IFRS 16 or its  application to the terms of this Agreement; and  19.4.1.2. the changes it wishes to make to this Agreement and/or any  other Finance Document in connection therewith.   19.4.2. If a Borrower delivers an IFRS 16 Notice in accordance with clause 19.4.1,  then the Borrowers and the Agent shall negotiate in good faith for a period  of 20 Business Days (commencing on the date falling 3 Business Days  after the date of the IFRS 16 Notice) or such other period as the Borrowers  and the Agent may agree (the “IFRS 16 Negotiation Period”) with a view  to agreeing any amendments to this Agreement or any other Finance  Document in connection with the adoption of IFRS 16 or its application to  the terms of this Agreement.  19.4.3. If, pursuant to clause 19.4.2, amendments to this Agreement and/or the  Finance Documents are agreed by the Borrowers and the Agent by the  end of the IFRS 16 Negotiation Period, the Borrowers and the Agent shall,  as soon as reasonably practicable, execute all necessary documentation  in order to implement such changes and such changes shall take effect  and be binding on each of the Parties in accordance with their terms.  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 54  Execution Version      19.5. Access to records  At any time after the occurrence of an Event of Default and for so long as it is continuing,  upon the request of the Agent, or a Lender each Obligor shall (at that Obligor’s  expense) provide to the Agent or any of its representatives and professional advisors  such access to that Obligor’s records (including its general ledger), books and assets  as that person may require at reasonable times and upon reasonable notice.  19.6. Information: miscellaneous  Each Obligor shall supply to the Agent, if the Agent so requests:  19.6.1. all documents dispatched by that Obligor to its shareholders (or any class  of them) or its creditors generally at the same time as they are dispatched;  19.6.2. the details of any litigation, arbitration or administrative proceedings which  are current, threatened (where the relevant Obligor is aware of such,  having made diligent inquiry) or pending against any member of the Group  which, if adversely determined against it, would be reasonably likely to  have a Material Adverse Effect; and  19.6.3. promptly, such further information (including an extract of its general  ledger) regarding the financial condition, business and operations of any  Material Group Company as any Finance Party (through the Agent) may  reasonably request.  19.7. Notification of default  19.7.1. Each Obligor shall notify the Agent of any Default (and the steps, if any,  being taken to remedy it) promptly upon becoming aware of its occurrence  (unless that Obligor is aware that a notification has already been provided  by another Obligor).  19.7.2. Promptly upon a request by the Agent, each Borrower shall supply to the  Agent, a certificate signed by 2 (two) of its directors or senior officers on  its behalf certifying that no Default is continuing (or if a Default is  continuing specifying the Default and the steps, if any, being taken to  remedy it).  19.8. Sanctions  The Obligors shall not (and shall procure that no Subsidiary of the Obligors will):   #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 55  Execution Version      19.8.1. knowingly use, contribute or otherwise make available the proceeds of the  Facility for the purpose of financing or making funds available directly; or   19.8.2. use, contribute or otherwise make available the proceeds of the Facility  for the purpose of financing or making funds available indirectly,   to any person which is the subject or target of any Sanctions or located in a Sanctioned  Country, to the extent such financing or provision of funds is prohibited by Sanctions.  19.9. "Know your customer" checks  19.9.1. If:  19.9.1.1. the introduction of or any change in (or in the interpretation,  administration or application of) any law or regulation made  after the Amendment and Restatement Signature Date;  19.9.1.2. any change in the status of an Obligor or the composition of  the shareholders of an Obligor after the Amendment and  Restatement Signature Date; or  19.9.1.3.  proposed assignment or transfer by a Lender of any of its  rights and obligations under this Agreement to a party that is  not a Lender prior to such assignment or transfer,  obliges the Agent or any Lender (or, in the case of clause 19.9.1.3 above,  any prospective new Lender) to comply with "know your customer" or  similar identification procedures in circumstances where the necessary  information is not already available to it, each Obligor shall promptly upon  the request of the Agent or any Lender supply, or procure the supply of,  such documentation and other evidence as is reasonably requested by the  Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in  the case of the event described in clause 19.9.1.3 above, on behalf of any  prospective new Lender) in order for the Agent, such Lender or, in the  case of the event described in clause 19.9.1.3 above, any prospective new  Lender to carry out and be satisfied it has complied with all necessary  "know your customer" or other similar checks under all applicable laws and  regulations pursuant to the transactions contemplated in the Finance  Documents.  19.9.2. Each Lender shall promptly upon the request of the Agent supply, or  procure the supply of, such documentation and other evidence as is  reasonably requested by the Agent (for itself) in order for the Agent to carry  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 56  Execution Version      out and be satisfied it has complied with all necessary "know your  customer" or other similar checks under all applicable laws and regulations  pursuant to the transactions contemplated in the Finance Documents.  19.9.3. Each of the Borrowers shall, by not less than 10 (ten) Business Days’ prior  written notice to the Agent, notify the Agent (which shall promptly notify  the Lenders) of its intention to request that one of its Subsidiaries becomes  an Additional Obligor pursuant to clause 24 (Changes to the Obligors).  19.9.4. Following the giving of any notice pursuant to clause 19.9.3 above, if the  accession of such Additional Obligor obliges the Agent or an Lender to  comply with "know your customer" or similar identification procedures in  circumstances where the necessary information is not readily available to  it, the Borrowers shall promptly upon the request of the Agent or any  Lender supply, or procure the supply of, such documentation and other  evidence as is reasonably requested by the Agent (for itself or on behalf  of any Lender) or any Lender (for itself or on behalf of any prospective  Lender) in order for the Agent or such Lender or any prospective new  Lender to carry out and be satisfied it has complied with all necessary  "know your customer" or other similar checks under all applicable laws and  regulations pursuant to the accession of such Subsidiary to this  Agreement as an Additional Obligor.  20. FINANCIAL COVENANTS  20.1. Financial definitions  In this Agreement:  20.1.1. Consolidated EBITDA means, for any Measurement Period, (having  reversed any entries made to reflect fair value gains or losses on financial  instruments which are undertaken in the normal course of business) the  aggregate of the Borrowers Consolidated Profits Before Interest and Tax  before any amount attributable to the amortisation of intangible assets and  depreciation of tangible assets and before any extraordinary items and  after having excluded any inter-company items in respect of the  consolidated position of each Borrower and after having eliminated the  effect of any inter-company transactions between the Borrowers;  20.1.2. Consolidated Net Borrowings means, at any time, the aggregate  amount of all obligations of the Group for or in respect of Indebtedness for  Borrowed Money but excluding any such obligation to any Obligor,  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 57  Execution Version      adjusted to take account of the aggregate amount of freely available cash  and cash equivalents held by any member of the Group (and so that no  amount shall be included or excluded more than once);  20.1.3. Consolidated Net Finance Charges means, in respect of any  Measurement Period, the aggregate amount of the interest (including the  interest element of leasing and hire purchase payments and capitalised  interest), commission, fees, discounts and other finance payments  payable by the Borrowers in respect of Indebtedness for Borrowed Money  after having excluded any inter-company payments of the same;  20.1.4. Consolidated Profits Before Interest and Tax means, in respect of any  Measurement Period, the consolidated net income of each Borrower  before:  20.1.4.1. any provision on account of normal taxation and royalty  taxation; and  20.1.4.2. any interest, commission, discounts or other fees incurred or  payable, received or receivable by any member of the Group  in respect of Indebtedness for Borrowed Money; and  20.1.5. Consolidated Tangible Net Worth means, at any time, the  "Shareholders’ Equity", as reported in the "Group Statement of Changes  in Shareholders’ Equity" in the last set of annual or semi-annual  consolidated financial statements of the Borrowers delivered to the  Lenders pursuant to this Agreement;  20.1.6. Measurement Period means each period of 12 (twelve) months ending  on the last day of the Borrowers’ Financial Year and each period of  12 (twelve) months ending on the last day of the first half of the Borrowers’  Financial Year.  20.2. Financial condition  Subject to clause 19.4 (IFRS 16 treatment), the Obligors shall ensure that for so long  as any amount is outstanding under a Finance Document or any Commitment is in  force:  20.2.1. the ratio of Consolidated EBITDA to Consolidated Net Finance Charges in  respect of any Measurement Period shall be or shall exceed 5:0;  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 58  Execution Version      20.2.2. the ratio of Consolidated Net Borrowings to Consolidated EBITDA shall  not in respect of any Measurement Period exceed 2.5.  20.3. Financial testing  The financial covenants set out in clause 20.2 (Financial condition) shall be tested by  reference to each of the financial statements and/or each Compliance Certificate  delivered pursuant to clause 19.2 (Compliance Certificate).  20.4. Breach of a Financial Condition Undertaking  Any Obligor shall, immediately upon becoming aware of a breach of either of the  financial covenants in clause 20.2 (Financial condition), notify the Agent and provide  such details about the breach as the Agent may request (unless that Obligor is aware  that a notification has already been provided by another Obligor).  21. GENERAL UNDERTAKINGS  The undertakings in this clause 21 are given in favour of each Finance Party and remain in  force from the Amendment and Restatement Signature Date for so long as any amount is  outstanding under the Finance Documents or any Commitment is in force.  21.1. Authorisations  Each Obligor shall promptly:  21.1.1. obtain, comply with and do all that is necessary to maintain in full force  and effect; and   21.1.2. upon written request by the Agent or a Finance Party, supply certified  copies to the Agent and/or a Finance Party, as the case may be, of,   any authorisation required under any applicable law to enable it to perform its  obligations under the Finance Documents to which it is a party and to ensure the  legality, validity, enforceability or admissibility in evidence of any Finance Document,  including but not limited to, the requisite exchange control approvals.  21.2. Compliance with laws  Each Obligor shall comply in all respects with all laws and regulations to which it may  be subject (including, but not limited to, Environmental Law), if failure so to comply  would materially impair its ability to perform its obligations under the Finance  Documents to which it is a party.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 59  Execution Version      21.3. Negative pledge  21.3.1. No Obligor shall (and the Borrowers shall procure that no other Material  Group Company shall) create or permit to subsist any Encumbrance over  any of its assets, save for Permitted Encumbrances.  21.3.2. No Obligor shall (and the Borrowers shall procure that no other Material  Group Company will):  21.3.2.1. sell, transfer or otherwise dispose of any of its assets on terms  whereby they are or may be leased to or re-acquired by it or  by an Obligor or any other member of the Group;  21.3.2.2. sell, transfer, cede or otherwise dispose of any of its  receivables on recourse terms;  21.3.2.3. enter into any arrangement under which money or the benefit  of a bank or other account may be applied, set-off or made  subject to a combination of accounts; or  21.3.2.4. enter into any other preferential arrangement having a similar  effect,  in circumstances where the arrangement or transaction is entered into  primarily as a method of raising any form of Financial Indebtedness or of  financing the acquisition of an asset.  21.3.3. Clauses 21.3.1 and 21.3.2 above do not apply to Permitted  Encumbrances.  21.4. Financial Indebtedness  No member of the Group (other than a Guarantor) shall incur, create or permit to subsist  or have outstanding any Financial Indebtedness or enter into any agreement or  arrangement whereby it is entitled to incur, create or permit to subsist any Financial  Indebtedness other than Permitted Financial Indebtedness.  21.5. Disposals and Mergers  21.5.1. No Obligor shall (and the Borrowers shall ensure that no other Material  Group Company will):  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 60  Execution Version      21.5.1.1. enter into a single transaction or a series of transactions  (whether related or not) and whether voluntarily or involuntarily  to sell, lease, transfer or otherwise dispose of any assets; or  21.5.1.2. enter into any amalgamation, demerger, merger or corporate  reconstruction.  21.5.2. Clause 21.5.1 above does not apply to:  21.5.2.1. Permitted Disposals; or  21.5.2.2. any amalgamation, demerger, merger or corporate  reconstruction of any member of the Group, without  insolvency, if:  21.5.2.2.1. in respect of the Obligors or the successors- in-title or assignees of the Obligors, the  Finance Documents are preserved as binding  upon the amalgamated, demerged, merged  and/or reconstructed members of the Group;  and  21.5.2.2.2. the amalgamated, demerged, merged and/or  reconstructed companies will be members of  the Group; and  21.5.2.2.3. such amalgamation, demerger, merger  and/or corporate reconstruction will not have  a Material Adverse Effect.  21.6. Pari Passu Ranking  Each Obligor shall ensure that at all times the claims of the Finance Parties against it  under the Finance Documents rank at least pari passu with claims of all its other  unsecured and unsubordinated creditors, except for obligations mandatorily preferred  by law applying to companies generally in its jurisdiction of incorporation.  21.7. Change of business  Each Obligor shall procure that no substantial change is made to the general nature of  its business or the business of the Group taken as a whole from that carried on at the  Amendment and Restatement Signature Date.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 61  Execution Version      21.8. Insurance  Each Obligor shall (and the Borrowers shall ensure that each Material Group Company  will) maintain insurances on and in relation to its business and assets with reputable  underwriters or insurance companies against those risks and to the extent as is usual  for companies carrying on the same or substantially similar business.  21.9. Environmental Compliance  Each Obligor shall (and each Obligor shall ensure that each Material Group Company  will) substantially comply in all material respects with all Environmental Law and obtain  and maintain any Environmental Permits and take all reasonable steps in anticipation  of known or expected future changes to or obligations under the same.  21.10. Environmental Claims  Each Obligor shall inform the Agent, in writing as soon as reasonably practical upon  becoming aware of the same if any Environmental Claim (not of a frivolous or vexatious  nature) has been commenced or (to the best of its knowledge and belief) threatened  against any Material Group Company where the claim would be reasonably likely, if  determined against that Material Group Company, to have a Material Adverse Effect.  21.11. Taxation  Each Obligor shall (and the Borrowers shall ensure that each other Material Group  Company will) duly and punctually pay and discharge all Taxes imposed upon it or its  assets within the time period allowed without incurring material penalties, except to the  extent:  21.11.1. that such payment is being contested in good faith;  21.11.2. adequate reserves are being maintained for those Taxes; and  21.11.3. where such payment can be lawfully withheld.  21.12. Maintenance of Legal Status  Each Material Group Company shall do all such things as are necessary to maintain  its existence as a legal person and shall maintain its books and records in good order  and make all necessary corporate filings with the relevant authorities in its jurisdiction  of incorporation.  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 62  Execution Version      21.13. Maintenance of Assets  Each Obligor shall (and the Borrowers shall ensure that each other Material Group  Company shall) ensure that it has good title to or validly leases or licences all of the  assets necessary and has all consents and/or authorisations necessary to carry on its  business as conducted to the extent that failure to comply with this clause 21.13 could  reasonably be expected to have a Material Adverse Effect.  21.14. Acquisitions  No Obligor shall (and the Obligors shall ensure that no Material Group Company will),  without the prior consent of the Majority Lenders, enter into any transaction, acquire  any company, business, assets or undertaking where the cumulative value of such  acquisitions is greater than 25% (twenty five percent) of the relevant Obligor’s  Consolidated Tangible Net Worth.  21.15. Anti-corruption law  21.15.1. No Obligor shall (and the Borrowers shall ensure that no Material Group  Company will) directly or indirectly use the proceeds of the Facilities for  any purpose which would breach any Applicable Anti-Corruption Laws.  21.15.2. The Borrowers shall (and shall ensure that each of its Material Group  Companies will) maintain and enforce, policies and procedures designed  to promote and ensure compliance with all Applicable Anti-Corruption  Laws.  22. EVENTS OF DEFAULT  Each of the events or circumstances set out in clause 22 is an Event of Default (whether or not  caused by any reason whatsoever outside the control of an Obligor or any other person).  22.1. Non-payment  An Obligor does not pay on the due date any amount payable pursuant to a Finance  Document at the place at and in the currency in which it is expressly payable and such  failure is not remedied by payment of the amount due within 3 (three) Business Days  of receipt of written notice from the Lender to the Borrowers calling upon the Borrowers  to effect payment.  22.2. Financial covenants  Any requirement of clause 20 (Financial Covenants) is not satisfied.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 63  Execution Version      22.3. Other obligations under Finance Documents  22.3.1. Subject to clause 22.16 (Remedy), an Obligor does not comply with any  provision of the Finance Documents (other than those referred to in  clause 22.1 (Non-Payment) and clause 20 (Financial Covenants)).  22.3.2. No Event of Default will occur under clause 22.3.1 if the taxes not duly and  punctually paid and discharged and in respect of which the undertaking  contained in clause 21.11 is given do not exceed an amount of  US$5 000 000 (US dollars five million).  22.4. Misrepresentation  22.4.1. Subject to clause 22.16 (Remedy), any representation or statement made  or deemed to be made by any Obligor in the Finance Documents or any  other document delivered by or on behalf of any Obligor under or in  connection with any Finance Document is or proves to have been incorrect  or misleading in any material and adverse respect when made or deemed  to be made.  22.4.2. No Event of Default will occur under clause 22.4.1 if the taxes in respect  of which the undertaking contained in clause 21.11 was made do not  exceed an amount of US$5 000 000 (US dollars five million).  22.5. Cross-default  22.5.1. Any Financial Indebtedness of a Material Group Company is not paid  when due, nor where there is an applicable grace period, within the earlier  to expire of the originally applicable grace period and a period of 5 (five)  days starting at the same time as the originally applicable grace period.  22.5.2. Any Financial Indebtedness of a Material Group Company is declared to  be or otherwise becomes due and payable prior to its specified maturity  as a result of an event of default (however described).  22.5.3. Any commitment for any Financial Indebtedness of a Material Group  Company is cancelled or suspended by a creditor of a Material Group  Company as a result of an event of default (however described).  22.5.4. Any creditor of a Material Group Company becomes entitled to declare  any Financial Indebtedness of a Material Group Company due and  payable prior to its specified maturity as a result of an Event of Default  (however described).  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 64  Execution Version      22.5.5. No Event of Default will occur under this clause 22.5 if the aggregate  amount of Financial Indebtedness or commitment for Financial  Indebtedness, falling within clauses 22.5.1 to 22.5.4 above is less than  US$5 000 000 (US dollars five million).  22.6. Insolvency  22.6.1. Any Material Group Company is unable or admits inability to pay its debts  as they fall due, suspends making payments on any of its debts or, by  reason of actual or anticipated financial difficulties, commences  negotiations with one or more of its classes of creditors with a view to  rescheduling any of its Financial Indebtedness which in the case of a  Material Group Company (other than an Obligor) could reasonably be  expected to have a Material Adverse Effect.  22.6.2. The value of the assets of any Material Group Company is less than its  liabilities (taking into account contingent and prospective liabilities) which  in the case of a Material Group Company (other than an Obligor) could  reasonably be expected to have a Material Adverse Effect.  22.6.3. A moratorium is declared in respect of any Financial Indebtedness of any  Material Group Company.  22.7. Insolvency proceedings  Any corporate action, legal proceedings or other similar procedure or step is taken in  relation to:  22.7.1. the suspension of payments, a moratorium of any Financial Indebtedness,  winding-up, dissolution, administration or reorganisation (by way of  voluntary arrangement, scheme of arrangement or otherwise) of any  Material Group Company;  22.7.2. a composition, compromise, assignment or arrangement with any creditor  or class of creditors of any Material Group Company;  22.7.3. the appointment of a liquidator, receiver, administrator, administrative  receiver, judicial manager, compulsory manager or other similar officer in  respect of any Material Group Company or any of its assets; or  22.7.4. enforcement of any Encumbrance over any assets of any Material Group  Company, or any analogous procedure or step is taken in any jurisdiction  and any such procedure or proceedings are not contested in good faith  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 65  Execution Version      nor discharged within 30 (thirty) days (or such shorter period provided for  contesting such procedure or proceedings under the laws of the relevant  jurisdiction).  22.8. Failure to Comply with Final Judgement  Any Material Group Company fails within 5 (five) Business Days of the due date to  comply with or pay any sum due from it under any material final judgement or any final  order made or given by any court of competent jurisdiction. For the purposes of this  clause 22.8, a material final judgement shall be any final judgement for the payment  of a sum of money in excess of US$2 500 000 (US dollars two million five hundred  thousand).  22.9. Creditors’ Process  Any expropriation (other than an expropriation where fair compensation is received) or  the operation of the attachment, sequestration, distress or execution affects any  material asset of a Material Group Company and is not discharged within 21 (twenty  one) days. For the purposes of this clause 22.9 a material asset is any single income  producing asset of the relevant Material Group Company which contributes not less  than 5% (five percent) towards the Consolidated EBITDA or gross assets of the Group  (calculated according to the most recent set of audited consolidated financial  statements delivered pursuant to clause 19.1 (Financial Statements) provided that any  loss of mineral rights arising as a result of the operation of the Minerals and Mining Act,  2006 (Act 703) of the Republic of Ghana shall not constitute an expropriation for the  purposes of this clause 22.9.  22.10. Unlawfulness  It is or becomes unlawful for an Obligor to perform any of its obligations under the  Finance Documents or such obligations cease to be legal, valid, binding or enforceable  obligations.  22.11. Repudiation and Unenforceability  An Obligor repudiates a Finance Document or any Finance Document is declared to  be or is otherwise unenforceable against an Obligor by a court of the jurisdiction of  incorporation of the relevant Obligor.  22.12. Governmental Intervention  By or under the authority of any government:  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 66  Execution Version      22.12.1. the management of any Material Group Company is wholly or partially  displaced or the authority of any Material Group Company in the conduct  of its business is wholly or partially taken over; or  22.12.2. all or a majority of the issued shares of any Material Group Company or  material part of its revenues or assets is seized, nationalised, expropriated  or compulsorily acquired. For the purposes of this clause 22.12.2 (material  part of its revenues or assets shall in relation to the relevant Material  Group Company be construed as revenues comprising not less than 5%  (five percent) of the Consolidated EBITDA or gross assets of the Group  calculated mutatis mutandis in accordance with the provisions of  clause 20.1.1 (Financial Covenants) or assets which contribute not less  than 5% (five percent) towards the Consolidated EBITDA or gross assets  of the Group calculated mutatis mutandis in accordance with the  provisions of clause 20.1.1 (Financial Covenants), provided that neither  the implementation of the Mineral and Petroleum Resources Development  Act, No. 28 of 2002 substantially in its current form as at the Amendment  and Restatement Signature Date nor the implementation of the Minerals  and Petroleum Royalty Bill in substantially its current form once enacted  shall constitute a seizure, nationalisation, expropriation or compulsory  acquisition as contemplated by this clause 22.12.2.  22.13. Material Adverse Effect  Any change occurs in the business, condition (financial or otherwise), operations,  performance, properties or prospects of the Obligors or the Group taken as a whole  since the date of the Original Financial Statements provided to the Agent in accordance  with this Agreement, which could be reasonably likely to have a Material Adverse  Effect.  22.14. Cessation of Business  Any Material Group Company ceases to carry on the business which it undertakes at  the Amendment and Restatement Signature Date.  22.15. Acceleration  On and at any time after the occurrence of an Event of Default which is continuing the  Agent may, and shall if so directed by the Majority Lenders, by notice to the Borrowers:  22.15.1. cancel the Total Commitments whereupon they shall immediately be  cancelled;  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 67  Execution Version      22.15.2. declare that all or part of the Loans, together with accrued interest, and all  other amounts accrued or outstanding under the Finance Documents be  immediately due and payable, whereupon they shall become immediately  due and payable; and/or  22.15.3. declare that all or part of the Loans be payable on demand, whereupon  they shall immediately become payable on demand by the Agent on the  instructions of the Majority Lenders.   22.16. Remedy  22.16.1. No Event of Default under this clause 22 (Events of Default) (other than  those referred to in clause 22.1 (Non-payment) and 22.2 (Financial  covenants)) will occur if the failure to comply or circumstance giving rise  to the same is capable of remedy and is remedied by an Obligor within 10  (ten) days of the earlier of the Agent giving notice to the Obligors or any  Obligor becoming aware of the failure to comply.  22.16.2. For the purposes of clause 22.16.1 above, the events or circumstances  referred to in clause 22.5 (Cross-default), clause 22.6 (Insolvency),  clause 22.7 (Insolvency Proceedings), clause 22.8 (Failure to Comply with  Final Judgment), clause 22.9 (Creditors Process), clause 22.10  (Unlawfulness), clause 22.11 (Repudiation and Unenforceability),  clause 22.12 (Governmental Intervention), clause 22.13 (Material  Adverse Effect) and clause 22.14 (Cessation of Business) shall be  deemed to be incapable of remedy save to the extent set out therein  unless the Agent determines otherwise.  23. CHANGES TO THE LENDERS  23.1. Assignments and transfers by the Lenders  Subject to this clause 23, a Lender (the "Existing Lender") may:  23.1.1. assign any (or all) of its rights; or  23.1.2. transfer by novation any (or all) of its rights and obligations,  to another bank or financial institution (the "New Lender").  23.2. Conditions of assignment or transfer  23.2.1. The consent of the Borrowers is required for an assignment or transfer by  an Existing Lender, unless the assignment or transfer:  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 68  Execution Version      23.2.1.1. is to another Lender or an Affiliate of a Lender; or  23.2.1.2. a Permitted Transferee as set out in Schedule 9 hereto.  23.2.2. The consent of the Borrowers to an assignment or transfer must not be  unreasonably withheld, made subject to conditions or delayed. The  Borrowers will be deemed to have given their consent 5 (five) Business  Days after the Existing Lender has requested it, unless consent is  expressly refused by the Borrowers within that time.  23.2.3. The Borrowers (acting reasonably) shall at any time (other than during the  15 (fifteen) Business Day notice period referred to below (Notification)) be  entitled to deliver a written notice to the Agent specifying that it wishes to  remove a Permitted Transferee from the Permitted Transferee list. Such  written notice shall set out reasonable grounds for the Borrower’s request  to remove such Permitted Transferee from the list. If the Agent is satisfied  (acting reasonably) that the Borrowers has reasonable grounds for such  removal the Agent shall notify the Borrowers in writing accordingly and  such Permitted Transferee shall thereupon cease to be a Permitted  Transferee; provided that, to the extent that such Permitted Transferee is  already a Lender as at the date of such removal, such removal shall not  obligate any Finance Party to acquire or re-acquire such Permitted  Transferees participation in any Loan.  23.2.4. The consent of the Borrowers under clause 23.2.1 shall not be required  when an Event of Default has occurred and is continuing.  23.2.5. An assignment will only be effective on:   23.2.5.1. receipt by the Agent of written confirmation from the New  Lender (in form and substance satisfactory to the Agent) that  the New Lender will assume the same obligations to the other  Finance Parties as it would have been under if it was an  Original Lender; and  23.2.5.2. performance by the Agent of all necessary "know your  customer" or other similar checks under all applicable laws  and regulations in relation to such assignment to a New  Lender, the completion of which the Agent shall promptly  notify to the Existing Lender and the New Lender.  23.2.6. A transfer will only be effective if the procedure set out in clause 23.4  (Procedure for transfer) is complied with. In addition, a Lender proposing  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 69  Execution Version      to effect any assignment or transfer shall give the Borrowers and each  other Finance Party 15 (fifteen) Business Days’ prior written notice of any  such proposed assignment or transfer.  23.2.7. If:  23.2.7.1. a Lender assigns or transfers any of its rights or obligations  under the Finance Documents or changes its Facility Office;  and  23.2.7.2. as a result of circumstances existing at the date the  assignment, transfer or change occurs, an Obligor would be  obliged to make a payment to the New Lender or Lender  acting through its new Facility Office under clause 12 (Tax  gross-up and indemnities) or clause 13 (Increased costs),  then the New Lender or Lender acting through its new Facility Office is  only entitled to receive payment under those clauses to the same extent  as the Existing Lender or Lender acting through its previous Facility Office  would have been if the assignment, transfer or change had not occurred.  23.3. Limitation of responsibility of Existing Lenders  23.3.1. Unless expressly agreed to the contrary, an Existing Lender makes no  representation or warranty and assumes no responsibility to a New Lender  for:  23.3.1.1. the legality, validity, effectiveness, adequacy or enforceability  of the Finance Documents or any other documents;  23.3.1.2. the financial condition of any Obligor;  23.3.1.3. the performance and observance by any Obligor of its  obligations under the Finance Documents or any other  documents; or  23.3.1.4. the accuracy of any statements (whether written or oral) made  in or in connection with any Finance Document or any other  document,  and any representations or warranties implied by law are excluded.  23.3.2. Each New Lender confirms to the Existing Lender and the other Finance  Parties that it:   





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 70  Execution Version      23.3.2.1. has made (and shall continue to make) its own independent  investigation and assessment of the financial condition and  affairs of each Obligor and its related entities in connection  with its participation in this Agreement and has not relied  exclusively on any information provided to it by the Existing  Lender in connection with any Finance Document; and  23.3.2.2. will continue to make its own independent appraisal of the  creditworthiness of each Obligor and its related entities whilst  any amount is or may be outstanding under the Finance  Documents or any Commitment is in force.  23.3.3. Nothing in any Finance Document obliges an Existing Lender to:  23.3.3.1. accept a re-transfer from a New Lender of any of the rights  and obligations assigned or transferred under this clause 23;  or  23.3.3.2. support any losses directly or indirectly incurred by the New  Lender by reason of the non-performance by any Obligor of its  obligations under the Finance Documents or otherwise.  23.4. Procedure for transfer  23.4.1. Subject to the conditions set out in clause 23.2 (Conditions of assignment  or transfer) a transfer is effected in accordance with clause 23.4.3 below  when the Agent executes an otherwise duly completed Transfer Certificate  delivered to it by the Existing Lender and the New Lender. The Agent shall,  subject to clause 23.4.2 below, as soon as reasonably practicable after  receipt by it of a duly completed Transfer Certificate appearing on its face  to comply with the terms of this Agreement and delivered in accordance  with the terms of this Agreement, execute that Transfer Certificate.  23.4.2. The Agent shall only be obliged to execute a Transfer Certificate delivered  to it by the Existing Lender and the New Lender once it is satisfied it has  complied with all necessary "know your customer" or other similar checks  under all applicable laws and regulations in relation to the transfer to such  New Lender.  23.4.3. On the Transfer Date:  23.4.3.1. to the extent that in the Transfer Certificate the Existing Lender  seeks to transfer by novation its rights and obligations under  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 71  Execution Version      the Finance Documents each of the Obligors and the Existing  Lender shall be released from further obligations towards one  another under the Finance Documents and their respective  rights against one another under the Finance Documents shall  be cancelled (being the Discharged Rights and  Obligations);  23.4.3.2. each of the Obligors and the New Lender shall assume  obligations towards one another and/or acquire rights against  one another which differ from the Discharged Rights and  Obligations only insofar as that Obligor and the New Lender  have assumed and/or acquired the same in place of that  Obligor and the Existing Lender;  23.4.3.3. the Agent, the New Lender and other Lenders shall acquire  the same rights and assume the same obligations between  themselves as they would have acquired and assumed had  the New Lender been an Original Lender with the rights and/or  obligations acquired or assumed by it as a result of the transfer  and to that extent the Agent, and the Existing Lender shall  each be released from further obligations to each other under  the Finance Documents; and  23.4.3.4. the New Lender shall become a Party as a Lender.  23.5. Copy of Transfer Certificate to Borrowers  The Agent shall, as soon as reasonably practicable after it has executed a Transfer  Certificate, send to the Borrowers a copy of that Transfer Certificate.  23.6. Disclosure of information  Any Lender may disclose to any of its Affiliates, professional advisors, auditors and any  other person if any person to whom such information is to be given pursuant to this  clause 23.6 is informed in writing of the confidential nature of such information and the  Obligor is informed of such disclosure:  23.6.1. to (or through) whom that Lender assigns or transfers (or may potentially  assign or transfer) all or any of its rights and obligations under this  Agreement;  23.6.2. with (or through) whom that Lender enters into (or may potentially enter  into) any sub- participation in relation to, or any other transaction under  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 72  Execution Version      which payments are to be made by reference to, this Agreement or any  Obligor; or  23.6.3. to whom, and to the extent that, information is required to be disclosed by  any applicable law or regulation,  any information about any Obligor, the Group and the Finance Documents as that  Lender shall consider appropriate if, in relation to clauses 23.6.1 and 23.6.2 above, the  person to whom the information is to be given has entered into a Confidentiality  Undertaking. A Lender may also disclose the size and term of the Facility and the name  of each Obligor to any investor or potential investor in a securitisation (or similar  transaction of broadly equivalent economic effect) if the person to whom the information  is to be given has entered into a Confidentiality Undertaking.  24. CHANGES TO THE OBLIGORS  24.1. Assignment and transfer by Obligors  No Obligor may assign any of its rights or transfer any of its rights or obligations under  the Finance Documents.  24.2. Additional Guarantors  24.2.1. Subject to compliance with the provisions of clauses 19.9.3 and 19.9.4  ("Know your customer" checks), the Borrowers may request that any of  their respective Subsidiaries become an Additional Guarantor. That  Subsidiary shall become an Additional Guarantor if;  24.2.1.1. the Borrowers deliver to the Agent a duly completed and  executed Accession Letter; and  24.2.1.2. the Agent has received all of the documents and other  evidence listed in Part II of Schedule 2 (Conditions precedent)  in relation to that Additional Guarantor, each in form and  substance satisfactory to the Agent.  24.2.2. The Agent shall notify the Borrowers and the Lenders promptly upon being  satisfied that it has received (in form and substance satisfactory to it) all  the documents and other evidence listed in Part II of Schedule 2  (Conditions precedent).  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 73  Execution Version      24.3. Repetition of Representations  Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that  the representations in clause 18 (Representations) are true and correct in relation to it  as at the date of delivery as if made by reference to the facts and circumstances then  existing.  24.4. Resignation of an Additional Guarantor  24.4.1. The Borrowers may request that a Guarantor (other than an Original  Guarantor) ceases to be a Guarantor by delivering to the Agent a  Resignation Letter.  24.4.2. The Agent shall accept a Resignation Letter and notify the Borrowers and  the Lenders of its acceptance if no Default is continuing and the Borrowers  have confirmed to the Agent that this is the case.  25. ROLE OF THE AGENT  25.1. Appointment of the Agent  25.1.1. With effect from the Agent Appointment Date, each other Finance Party  appoints the Agent to act as its agent under and in connection with the  Finance Documents.  25.1.2. Each other Finance Party authorises the Agent to exercise the rights,  powers, authorities and discretions specifically given to the Agent under  or in connection with the Finance Documents together with any other  incidental rights, powers, authorities and discretions.  25.2. Duties of the Agent  25.2.1. The Agent shall promptly forward to a Party the original or a copy of any  document which is delivered to the Agent for that Party by any other Party.  25.2.2. Except where a Finance Document specifically provides otherwise, the  Agent is not obliged to review or check the adequacy, accuracy or  completeness of any document it forwards to another Party.  25.2.3. If the Agent receives notice from a Party referring to this Agreement,  describing a Default and stating that the circumstance described is a  Default, it shall promptly notify the other Finance Parties.  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 74  Execution Version      25.2.4. If the Agent is aware of the non-payment of any principal, interest,  commitment fee or other fee payable to a Finance Party (other than the  Agent) under this Agreement it shall promptly notify the other Finance  Parties.  25.2.5. The Agent’s duties under the Finance Documents are solely mechanical  and administrative in nature.  25.3. No fiduciary duties  25.3.1. Nothing in this Agreement constitutes the Agent as a trustee or fiduciary  of any other person.  25.3.2. The Agent shall not be bound to account to any Lender for any sum or the  profit element of any sum received by it for its own account.  25.4. Business with the Group  The Agent may accept deposits from, lend money to and generally engage in any kind  of banking or other business with any member of the Group.  25.5. Rights and discretions of the Agent  25.5.1. The Agent may rely on:  25.5.1.1. any representation, notice or document believed by it to be  genuine, correct and appropriately authorised; and  25.5.1.2. any statement made by a director, authorised signatory or  employee of any person regarding any matters which may  reasonably be assumed to be within his knowledge or within  his power to verify.  25.5.2. The Agent may assume (unless it has received notice to the contrary in its  capacity as agent for the Lenders) that:  25.5.2.1. no Default has occurred (unless it has actual knowledge of a  Default arising under clause 22.1 (Non-payment));  25.5.2.2. any right, power, authority or discretion vested in any Party or  the Majority Lenders has not been exercised; and  25.5.2.3. any notice or request made by the Borrowers (other than a  Utilisation Request) is made on behalf of and with the consent  and knowledge of all the Obligors.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 75  Execution Version      25.5.3. The Agent may engage, pay for and rely on the advice or services of any  lawyers, accountants, surveyors or other experts.  25.5.4. The Agent may act in relation to the Finance Documents through its  personnel and agents.  25.5.5. The Agent may disclose to any other Party any information it reasonably  believes it has received as agent under this Agreement.  25.5.6. Notwithstanding any other provision of any Finance Document to the  contrary, the Agent is not obliged to do or omit to do anything if it would or  might in its reasonable opinion constitute a breach of any law or regulation  or a breach of a fiduciary duty or duty of confidentiality.  25.6. Majority Lenders’ instructions  25.6.1. Unless a contrary indication appears in a Finance Document, the Agent  shall (i) exercise any right, power, authority or discretion vested in it as  Agent in accordance with any instructions given to it by the Majority  Lenders (or, if so instructed by the Majority Lenders, refrain from  exercising any right, power, authority or discretion vested in it as Agent)  and (ii) not be liable for any act (or omission) if it acts (or refrains from  taking any action) in accordance with an instruction of the Majority  Lenders.  25.6.2. Unless a contrary indication appears in a Finance Document, any  instructions given by the Majority Lenders will be binding on all the Finance  Parties.  25.6.3. The Agent may refrain from acting in accordance with the instructions of  the Majority Lenders (or, if appropriate, the Lenders) until it has received  such security as it may require for any cost, loss or liability (together with  any associated VAT) which it may incur in complying with the instructions.  25.6.4. In the absence of instructions from the Majority Lenders, (or, if appropriate,  the Lenders) the Agent may act (or refrain from taking action) as it  considers to be in the best interest of the Lenders.  25.6.5. The Agent is not authorised to act on behalf of a Lender (without first  obtaining that Lender’s consent) in any legal or arbitration proceedings  relating to any Finance Document.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 76  Execution Version      25.7. Responsibility for documentation  The Agent:  25.7.1. is not responsible for the adequacy, accuracy and/or completeness of any  information (whether oral or written) supplied by the Agent, an Obligor or  any other person given in or in connection with any Finance Document; or  25.7.2. is not responsible for the legality, validity, effectiveness, adequacy or  enforceability of any Finance Document or any other agreement,  arrangement or document entered into, made or executed in anticipation  of or in connection with any Finance Document.  25.8. Exclusion of liability  25.8.1. Without limiting clause 25.8.2 below, the Agent will not be liable (including  without limitation, for negligence or any other category of liability  whatsoever) for any action taken by it under or in connection with any  Finance Document, unless directly caused by its gross negligence or wilful  misconduct.  25.8.2. No Party (other than the Agent) may take any proceedings against any  officer, employee or agent of the Agent in respect of any claim it might  have against the Agent or in respect of any act or omission of any kind by  that officer, employee or agent in relation to any Finance Document and  any officer, employee or agent of the Agent may rely on this clause 25.8  subject to clause 1.4 (Third Party Rights) and the provisions of the Third  Parties Act.  25.8.3. The Agent will not be liable for any delay (or any related consequences)  in crediting an account with an amount required under the Finance  Documents to be paid by the Agent if the Agent has taken all necessary  steps as soon as reasonably practicable to comply with the regulations or  operating procedures of any recognised clearing or settlement system  used by the Agent for that purpose.  25.8.4. Nothing in this Agreement shall oblige the Agent to carry out any "know  your customer" or other checks in relation to any person on behalf of any  Lender and each Lender confirms to the Agent that it is solely responsible  for any such checks it is required to carry out and that it may not rely on  any statement in relation to such checks made by the Agent.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 77  Execution Version      25.9. Lenders’ indemnity to the Agent  Each Lender shall (in proportion to its share of the Total Commitments or, if the Total  Commitments are then zero, to its share of the Total Commitments immediately prior  to their reduction to zero) indemnify the Agent, within 3 (three) Business Days of  demand, against any cost, loss or liability (including, without limitation, for negligence  or any other category of liability whatsoever) incurred by the Agent (otherwise than by  reason of the Agent’s gross negligence or wilful misconduct) in acting as Agent under  the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant  to a Finance Document).  25.10. Resignation of the Agent  25.10.1. The Agent may resign and appoint one of its Affiliates acting through an  office as successor by giving notice to the other Finance Parties and the  Borrowers.  25.10.2. Alternatively the Agent may resign by giving notice to the other Finance  Parties, in which case the Majority Lenders (after consultation with the  Borrowers) may appoint a successor Agent.  25.10.3. If the Majority Lenders have not appointed a successor Agent in  accordance with clause 25.10.2 above within 30 (thirty) days after notice  of resignation was given, the Agent (after consultation with the Borrowers)  may appoint a successor Agent.  25.10.4. The retiring Agent shall, at its own cost, make available to the successor  Agent such documents and records and provide such assistance as the  successor Agent may reasonably request for the purposes of performing  its functions as Agent under the Finance Documents.  25.10.5. The Agent’s resignation notice shall only take effect upon the appointment  of a successor.  25.10.6. Upon the appointment of a successor, the retiring Agent shall be  discharged from any further obligation in respect of the Finance  Documents but shall remain entitled to the benefit of this clause 25. Its  successor and each of the other Parties shall have the same rights and  obligations amongst themselves as they would have had if such successor  had been an original Party.  25.10.7. After consultation with the Borrowers, the Majority Lenders may, by notice  to the Agent, require it to resign in accordance with clause 25.10.2 above.  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 78  Execution Version      In this event, the Agent shall resign in accordance with clause 25.10.2  above.  25.11. Confidentiality  25.11.1. In acting as agent for the Finance Parties, the Agent shall be regarded as  acting through its agency division which shall be treated as a separate  entity from any other of its divisions or departments.  25.11.2. If information is received by another division or department of the Agent,  it may be treated as confidential to that division or department and the  Agent shall not be deemed to have notice of it.  25.12. Relationship with the Lenders  The Agent may treat each Lender as a Lender, entitled to payments under this  Agreement and acting through its Facility Office unless it has received not less than  5 (five) Business Days prior notice from that Lender to the contrary in accordance with  the terms of this Agreement.  25.13. Credit appraisal by the Lenders  Without affecting the responsibility of any Obligor for information supplied by it or on its  behalf in connection with any Finance Document, each Lender confirms to the Agent  that it has been, and will continue to be, solely responsible for making its own  independent appraisal and investigation of all risks arising under or in connection with  any Finance Document including but not limited to:  25.13.1. the financial condition, status and nature of each member of the Group;  25.13.2. the legality, validity, effectiveness, adequacy or enforceability of any  Finance Document and any other agreement, arrangement or document  entered into, made or executed in anticipation of, under or in connection  with any Finance Document;  25.13.3. whether that Lender has recourse, and the nature and extent of that  recourse, against any Party or any of its respective assets under or in  connection with any Finance Document, the transactions contemplated by  the Finance Documents or any other agreement, arrangement or  document entered into, made or executed in anticipation of, under or in  connection with any Finance Document; and  25.13.4. the adequacy, accuracy and/or completeness of any information provided  by the Agent, any Party or by any other person under or in connection with  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 79  Execution Version      any Finance Document, the transactions contemplated by the Finance  Documents or any other agreement, arrangement or document entered  into, made or executed in anticipation of, under or in connection with any  Finance Document.  25.14. Agent’s Management Time  Following the occurrence of a Default, any amount payable to the Agent under  clause 14.3 (Indemnity to the Agent), clause 16 (Costs and expenses) and clause 25.9  (Lenders’ indemnity to the Agent) shall in addition include the cost of utilising the  Agent’s management time or other resources and will be calculated on the basis of  such reasonable daily or hourly rates as the Agent may notify to the Borrowers and the  Lenders, and is in addition to any fee paid or payable to the Agent under clause 11  (Fees).  25.15. Deduction from amounts payable by the Agent  If any Party owes an amount to the Agent under the Finance Documents the Agent  may, after giving notice to that Party, deduct an amount not exceeding that amount  from any payment to that Party which the Agent would otherwise be obliged to make  under the Finance Documents and apply the amount deducted in or towards  satisfaction of the amount owed. For the purposes of the Finance Documents that Party  shall be regarded as having received any amount so deducted.  26. CONDUCT OF BUSINESS BY THE FINANCE PARTIES   No provision of this Agreement will:  26.1. interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in  whatever manner it thinks fit;  26.2. oblige any Finance Party to investigate or claim any credit, relief, remission or  repayment available to it or the extent, order and manner of any claim; or  26.3. oblige any Finance Party to disclose any information relating to its affairs (tax or  otherwise) or any computations in respect of Tax.  27. SHARING AMONG THE FINANCE PARTIES  27.1. Payments to Finance Parties  If a Finance Party (a Recovering Finance Party) receives or recovers any amount  from an Obligor other than in accordance with clause 28 (Payment Mechanics) and  applies that amount to a payment due under the Finance Documents then:  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 80  Execution Version      27.1.1. the Recovering Finance Party shall, within 3 (three) Business Days, notify  details of the receipt or recovery, to the Agent;  27.1.2. the Agent shall determine whether the receipt or recovery is in excess of  the amount the Recovering Finance Party would have been paid had the  receipt or recovery been received or made by the Agent and distributed in  accordance with clause 28 (Payment Mechanics), without taking account  of any Tax which would be imposed on the Agent in relation to the receipt,  recovery or distribution; and  27.1.3. the Recovering Finance Party shall, within 3 (three) Business Days of  demand by the Agent, pay to the Agent an amount (the Sharing Payment)  equal to such receipt or recovery less any amount which the Agent  determines may be retained by the Recovering Finance Party as its share  of any payment to be made, in accordance with clause 28.5 (Partial  Payments).  27.2. Redistribution of payments  The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor  and distribute it between the Finance Parties (other than the Recovering Finance Party)  in accordance with clause 28.5 (Partial Payments).  27.3. Recovering Finance Party’s rights  27.3.1. On a distribution by the Agent under clause 27.2 (Redistribution of  payments), the Recovering Finance Party will be subrogated to the rights  of the Finance Parties which have shared in the redistribution.  27.3.2. If and to the extent that the Recovering Finance Party is not able to rely  on its rights under clause 27.3.1 above, the relevant Obligor shall be liable  to the Recovering Finance Party for a debt equal to the Sharing Payment  which is immediately due and payable.  27.4. Reversal of redistribution  If any part of the Sharing Payment received or recovered by a Recovering Finance  Party becomes repayable and is repaid by that Recovering Finance Party, then:  27.4.1. each Finance Party which has received a share of the relevant Sharing  Payment pursuant to clause 27.2 (Redistribution of payments) shall, upon  request of the Agent, pay to the Agent for account of that Recovering  Finance Party an amount equal to the appropriate part of its share of the  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 81  Execution Version      Sharing Payment (together with an amount as is necessary to reimburse  that Recovering Finance Party for its proportion of any interest on the  Sharing Payment which that Recovering Finance Party is required to pay);  and  27.4.2. that Recovering Finance Party’s rights of subrogation in respect of any  reimbursement shall be cancelled and the relevant Obligor will be liable to  the reimbursing Finance Party for the amount so reimbursed.  27.5. Exceptions  27.5.1. This clause 27 shall not apply to the extent that the Recovering Finance  Party would not, after making any payment pursuant to this clause 27,  have a valid and enforceable claim against the relevant Obligor.  27.5.2. A Recovering Finance Party is not obliged to share with any other Finance  Party any amount which the Recovering Finance Party has received or  recovered as a result of taking legal or arbitration proceedings, if:  27.5.2.1. it notified that other Finance Party of the legal or arbitration  proceedings; and   27.5.2.2. that other Finance Party had an opportunity to participate in  those legal or arbitration proceedings but did not do so as soon  as reasonably practicable having received notice and did not  take separate legal or arbitration proceedings.  28. PAYMENT MECHANICS  28.1. Payments to the Agent  28.1.1. On each date on which an Obligor or a Lender is required to make a  payment under a Finance Document, that Obligor or Lender shall make  the same available to the Agent (unless a contrary indication appears in a  Finance Document) for value on the due date at the time and in such funds  specified by the Agent as being customary at the time for settlement of  transactions in the relevant currency in the place of payment.  28.1.2. Payment shall be made to such account in the principal financial centre of  the country of that currency with such bank as the Agent specifies.  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 82  Execution Version      28.2. Distributions by the Agent  Each payment received by the Agent under the Finance Documents for another Party  shall, subject to clause 28.3 (Distributions to an Obligor), clause 28.4 (Clawback) and  clause 25.15 (Deduction from amounts payable by the Agent) be made available by  the Agent as soon as practicable after receipt to the Party entitled to receive payment  in accordance with this Agreement (in the case of a Lender, for the account of its Facility  Office), to such account as that Party may notify to the Agent by not less than 5 (five)  Business Days’ notice with a bank in the principal financial centre of the country of that  currency.  28.3. Distributions to an Obligor  The Agent may (with the consent of the Obligor or in accordance with clause 29 (Set- off)) apply any amount received by it for that Obligor in or towards payment (on the  date and in the currency and funds of receipt) of any amount due from that Obligor  under the Finance Documents or in or towards purchase of any amount of any currency  to be so applied.  28.4. Clawback  28.4.1. Where a sum is to be paid to the Agent under the Finance Documents for  another Party, the Agent is not obliged to pay that sum to that other Party  (or to enter into or perform any related exchange contract) until it has been  able to establish to its satisfaction that it has actually received that sum.  28.4.2. If the Agent pays an amount to another Party and it proves to be the case  that the Agent had not actually received that amount, then the Party to  whom that amount (or the proceeds of any related exchange contract) was  paid by the Agent shall on demand refund the same to the Agent together  with interest on that amount from the date of payment to the date of receipt  by the Agent, calculated by the Agent to reflect its cost of funds.  28.5. Partial Payments  28.5.1. If the Agent receives a payment that is insufficient to discharge all the  amounts then due and payable by an Obligor under the Finance  Documents, the Agent shall apply that payment towards the obligations of  that Obligor under the Finance Documents in the following order:  28.5.1.1. first, in or towards payment pro rata of any unpaid fees, costs  and expenses of the Agent under the Finance Documents;  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 83  Execution Version      28.5.1.2. secondly, in or towards payment pro rata of any accrued  interest, fee or commission due but unpaid under this  Agreement;  28.5.1.3. thirdly, in or towards payment pro rata of any principal due but  unpaid under this Agreement; and  28.5.1.4. fourthly, in or towards payment pro rata of any other sum due  but unpaid under the Finance Documents.  28.5.2. The Agent shall, if so directed by the Majority Lenders, vary the order set  out in clauses 28.5.1.1 to 28.5.1.4 above.  28.5.3. Clauses 28.5.1 and 28.5.2 above will override any appropriation made by  an Obligor.   28.6. No set-off by Obligors  All payments to be made by an Obligor under the Finance Documents shall be  calculated and be made without (and free and clear of any deduction for) set-off or  counterclaim.  28.7. Business Days  Any payment which is due to be made on a day that is not a Business Day shall be  made on the next Business Day in the same calendar month (if there is one) or the  preceding Business Day (if there is not).  28.8. Currency of account  28.8.1. Subject to clauses 28.8.2 and 28.8.3 below, dollars is the currency of  account and payment for any sum due from an Obligor under any Finance  Document.  28.8.2. Each payment in respect of costs, expenses or Taxes shall be made in the  currency in which the costs, expenses or Taxes are incurred.  28.8.3. Any amount expressed to be payable in a currency other than dollars shall  be paid in that other currency.  28.9. Change of currency  28.9.1. Unless otherwise prohibited by law, if more than one currency or currency  unit are at the same time recognised by the central bank of any country as  the lawful currency of that country, then:  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 84  Execution Version      28.9.1.1. any reference in the Finance Documents to, and any  obligations arising under the Finance Documents in, the  currency of that country shall be translated into, or paid in, the  currency or currency unit of that country designated by the  Agent (after consultation with the Borrowers); and  28.9.1.2. any translation from one currency or currency unit to another  shall be at the official rate of exchange recognised by the  central bank for the conversion of that currency or currency  unit into the other, rounded up or down by the Agent (acting  reasonably).  28.9.2. If a change in any currency of a country occurs, this Agreement will, to the  extent the Agent (acting reasonably and after consultation with the  Borrowers) specifies to be necessary, be amended to comply with any  generally accepted conventions and market practice in the Relevant  Interbank Market and otherwise to reflect the change in currency.  29. SET-OFF  A Finance Party may set off any matured obligation due from an Obligor under the Finance  Documents (to the extent beneficially owned by that Finance Party) against any matured  obligation owed by that Finance Party to that Obligor, regardless of the place of payment,  booking branch or currency of either obligation. If the obligations are in different currencies, the  Finance Party may convert either obligation at a market rate of exchange in its usual course of  business for the purpose of the set-off.  30. NOTICES  30.1. Communications in writing  Any communication to be made under or in connection with the Finance Documents  shall be made in writing and, unless otherwise stated, may be made by letter.  30.2. Addresses  The address (and the department or officer, if any, for whose attention the  communication is to be made) of each Party for any communication or document to be  made or delivered under or in connection with the Finance Documents is:  30.2.1. in the case of each Lender or any Obligor, that set out in the 2021  Amendment and Restatement Agreement ; and  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 85  Execution Version      30.2.2. in the case of the Agent that identified in the 2021 Amendment and  Restatement Agreement ,   or any substitute address or department or officer as the Party may notify to the Agent  (or the Agent may notify to the other Parties, if a change is made by the Agent) by not  less than 5 (five) Business Days’ notice.  30.3. Delivery  30.3.1. Any communication or document made or delivered by one person to  another under or in connection with the Finance Documents will only be  effective when it has been left at the relevant address or 5 (five) Business  Days after being deposited in the post postage prepaid in an envelope  addressed to it at that address, and, if a particular department or officer is  specified as part of its address details provided under clause 30.2  (Addresses), if addressed to that department or officer.  30.3.2. Any communication or document to be made or delivered to the Agent or  will be effective only when actually received by the Agent and then only if  it is expressly marked for the attention of the department or officer  identified with the Agent’s signature below (or any substitute department  or officer as the Agent shall specify for this purpose).  30.3.3. All notices from or to an Obligor shall be sent through the Agent.  30.3.4. Any communication or document made or delivered to any Borrower in  accordance with this clause will be deemed to have been made or  delivered to each of the Obligors.  30.4. Notification of address    Promptly upon receipt of notification of an address or change of address pursuant to  clause 30.2 (Addresses) or changing its own address, the Agent shall notify the other  Parties.  30.5. Electronic communication  30.5.1. Any communication to be made between the Agent and another Party,  under or in connection with the Finance Documents may be made by  electronic mail or other electronic means, if the Agent and the relevant  Party:  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 86  Execution Version      30.5.1.1. agree that, unless and until notified to the contrary, this is to  be an accepted form of communication (the Parties hereby  record that they have agreed to same);  30.5.1.2. notify each other in writing of their electronic mail address  and/or any other information required to enable the sending  and receipt of information by that means; and  30.5.1.3. notify each other of any change to their address or any other  such information supplied by them.  30.5.2. Any electronic communication made between the Agent and a Party will  be effective only when actually received in readable form and in the case  of any electronic communication made by a Lender to the Agent only if it  is addressed in such a manner as the Agent shall specify for this purpose.  30.6. English language  30.6.1. Any notice given under or in connection with any Finance Document must  be in English.  30.6.2. All other documents provided under or in connection with any Finance  Document must be:  30.6.2.1. in English; or  30.6.2.2. if not in English, and if so required by the Agent, accompanied  by a certified English translation and, in this case, the English  translation will prevail unless the document is a constitutional,  statutory or other official document.  31. CALCULATIONS AND CERTIFICATES  31.1. Delivery  In any litigation or arbitration proceedings arising out of or in connection with a Finance  Document, the entries made in the accounts maintained by a Finance Party are prima  facie evidence of the matters to which they relate.  31.2. Certificates and Determinations  Any certification or determination by a Finance Party of a rate or amount under any  Finance Document is, in the absence of manifest error, conclusive evidence of the  matters to which it relates.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 87  Execution Version      31.3. Day count convention  Any interest, commission or fee accruing under a Finance Document will accrue from  day to day and is calculated on the basis of the actual number of days elapsed and a  year of 360 (three hundred and sixty) days or, in any case where the practice in the  Relevant Interbank Market differs, in accordance with that market practice.  32. PARTIAL INVALIDITY  If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or  unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or  enforceability of the remaining provisions nor the legality, validity or enforceability of such  provision under the law of any other jurisdiction will in any way be affected or impaired.  33. REMEDIES AND WAIVERS  No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right  or remedy under the Finance Documents shall operate as a waiver, nor shall any single or  partial exercise of any right or remedy prevent any further or other exercise or the exercise of  any other right or remedy. The rights and remedies provided in this Agreement are cumulative  and not exclusive of any rights or remedies provided by law.  34. AMENDMENTS AND WAIVERS  34.1. Required consents  34.1.1. Subject to clause 34.2 (Exceptions) and to clause 34.3 (Replacement of  Screen Rate), any term of the Finance Documents may be amended or  waived only with the consent of the Majority Lenders and the Borrowers  and any such amendment or waiver will be binding on all Parties.  34.1.2. The Agent may effect, on behalf of any Finance Party, any amendment or  waiver permitted by this clause 34.  34.2. Exceptions  34.2.1. An amendment or waiver that has the effect of changing or which relates  to:  34.2.1.1. the definition of "Majority Lenders" in clause 1.1 (Definitions);  34.2.1.2. an extension to the date of payment of any amount under the  Finance Documents;  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 88  Execution Version      34.2.1.3. a reduction in the Margin or a reduction in the amount of any  payment of principal, interest, fees or commission payable;  34.2.1.4. an increase in or an extension of any Commitment;  34.2.1.5. a change to the Borrowers or Guarantors (other than in  accordance with clause 24 (Changes to the Obligors));  34.2.1.6. any provision which expressly requires the consent of all the  Lenders;  34.2.1.7. clause 2.2 (Finance Parties’ rights and obligations), clause 23  (Changes to the Lenders) or this clause 34,  shall not be made without the prior consent of all the Lenders.  34.2.2. An amendment or waiver which relates to the rights or obligations of the  Agent may not be effected without the consent of the Agent.  34.2.3. An amendment or waiver which has the effect of obliging any Lender which  has a Commitment to make a participation in a proposed Loan when it  would not otherwise be obliged to do so under this Agreement, shall not  be made without the prior consent of a Lender or Lenders whose  participations in that Loan (assuming that Utilisation would occur) would  aggregate more than 662/3 percent of the amount of that Utilisation under  the Facility.  34.2.4. Any amendments made pursuant to clause 19.4.3 may be made with the  consent of the Borrowers and the Agent (acting on the instructions of the  Majority Lenders) only.  34.3. Replacement of Screen Rate  34.3.1. Subject to clause 34.2 (Exceptions), if a Screen Rate Replacement Event  has occurred in relation to any Screen Rate for dollars, any amendment or  waiver which relates to:  34.3.1.1. providing for the use of a Replacement Benchmark in relation  to that currency in place of that Screen Rate; and  34.3.1.2. [deliberately left open]  34.3.1.2.1. aligning any provision of any Finance Document to the  use of that Replacement Benchmark;  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 89  Execution Version      34.3.1.2.2. enabling that Replacement Benchmark to be used for the  calculation of interest under this Agreement (including,  without limitation, any consequential changes required to  enable that Replacement Benchmark to be used for the  purposes of this Agreement);   34.3.1.2.3. implementing market conventions applicable to that  Replacement Benchmark;  34.3.1.2.4. providing for appropriate fallback (and market disruption)  provisions for that Replacement Benchmark; or  34.3.1.2.5. adjusting the pricing to reduce or eliminate, to the extent  reasonably practicable, any transfer of economic value  from one Party to another as a result of the application of  that Replacement Benchmark (and if any adjustment or  method for calculating any adjustment has been formally  designated, nominated or recommended by the Relevant  Nominating Body, the adjustment shall be determined on  the basis of that designation, nomination or  recommendation),  may be made with the consent of the Agent (acting on the instructions of  the Majority Lenders) and the Borrowers.  34.3.2. If (at any time where there is more than one Lender) any Lender fails to  respond to a request for an amendment or waiver described in clause 34.3  above within 10 (ten) Business Days (or such longer time period in relation  to any request which the Borrowers and the Agent may agree) of that  request being made:  34.3.2.1. its Commitment(s) shall not be included for the purpose of  calculating the Total Commitments under the Facility when  ascertaining whether any relevant percentage of Total  Commitments has been obtained to approve that request; and  34.3.2.2. its status as a Lender shall be disregarded for the purpose of  ascertaining whether the agreement of any specified group of  Lenders has been obtained to approve that request.  34.4. For the purposes of clause 34.3, the following terms shall have the following  meanings:  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 90  Execution Version      34.4.1. "Relevant Nominating Body" means any applicable central  bank, regulator or other supervisory authority or a group of them,  or any working group or committee sponsored or chaired by, or  constituted at the request of, any of them or the Financial Stability  Board.  34.4.2. "Replacement Benchmark" means a benchmark rate which is:  34.4.2.1. formally designated, nominated or recommended as  the replacement for a Screen Rate by:  34.4.2.1.1. the administrator of that Screen Rate  (provided that the market or  economic reality that such  benchmark rate measures is the  same as that measured by the  Screen Rate); or  34.4.2.1.2. any Relevant Nominating Body,  and if replacements have, at the relevant time, been  formally designated, nominated or recommended  under both clauses, the "Replacement Benchmark"  will be the replacement under clause 34.4.2.1.2;   34.4.2.2. in the opinion of the Majority Lenders and the  Borrowers, generally accepted in the international or  any relevant domestic syndicated loan markets as the  appropriate successor to a Screen Rate; or  34.4.2.3. in the opinion of the Majority Lenders and the  Borrowers, an appropriate successor to a Screen  Rate.  34.4.3. "Screen Rate Replacement Event" means, in relation to a  Screen Rate:  34.4.3.1. the methodology, formula or other means of  determining that Screen Rate has, in the opinion of  the Majority Lenders and the Borrowers materially  changed;  34.4.3.1.1. [deliberately left open]  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 91  Execution Version      34.4.3.1.1.1. the administrator of that  Screen Rate or its  supervisor publicly  announces that such  administrator is insolvent; or  34.4.3.1.1.2. information is published in  any order, decree, notice,  petition or filing, however  described, of or filed with a  court, tribunal, exchange,  regulatory authority or  similar administrative,  regulatory or judicial body  which reasonably confirms  that the administrator of that  Screen Rate is insolvent,  provided that, in each case, at that time,  there is no successor administrator to  continue to provide that Screen Rate;  34.4.3.1.2. the administrator of that Screen Rate publicly  announces that it has ceased or will cease,  to provide that Screen Rate permanently or  indefinitely and, at that time, there is no  successor administrator to continue to  provide that Screen Rate;  34.4.3.1.3. the supervisor of the administrator of that  Screen Rate publicly announces that such  Screen Rate has been or will be permanently  or indefinitely discontinued; or  34.4.3.1.4. the administrator of that Screen Rate or its  supervisor announces that that Screen Rate  may no longer be used; or  34.4.3.2. the administrator of that Screen Rate determines that  that Screen Rate should be calculated in accordance  with its reduced submissions or other contingency or  fallback policies or arrangements and either:  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 92  Execution Version      34.4.3.2.1. the circumstance(s) or event(s) leading to  such determination are not (in the opinion of  the Majority Lenders and the Borrowers)  temporary; or  34.4.3.2.2. that Screen Rate is calculated in accordance  with any such policy or arrangement for a  period no less than one month; or   34.4.3.3. in the opinion of the Majority Lenders and the  Borrowers, that Screen Rate is otherwise no longer  appropriate for the purposes of calculating interest  under this Agreement.  35. COUNTERPARTS  Each Finance Document may be executed in any number of counterparts, and this has the  same effect as if the signatures on the counterparts were on a single copy of the Finance  Document.  36. GOVERNING LAW  This Agreement and any non-contractual obligations arising out of or in connection with it is  governed by English law.  37. ENFORCEMENT  37.1. Jurisdiction  37.1.1. The courts of England have exclusive jurisdiction to settle any dispute  arising out of or in connection with this Agreement (including a dispute  regarding the existence, validity or termination of this Agreement) (a  "Dispute").  37.1.2. The Parties agree that the courts of England are the most appropriate and  convenient courts to settle Disputes and accordingly no Party will argue to  the contrary.  37.1.3. This clause 37.1 is for the benefit of the Finance Parties only. As a result,  no Finance Party shall be prevented from taking proceedings relating to a  Dispute in any other courts with jurisdiction. To the extent allowed by law,  the Finance Parties may take concurrent proceedings in any number of  jurisdictions.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 93  Execution Version      37.2. Service of process  37.2.1. Without prejudice to any other mode of service allowed under any relevant  law, each Obligor (other than an Obligor incorporated in England and  Wales):  37.2.1.1. irrevocably appoints Law Debenture Corporate Services  Limited of 100 Wood Street, London EC2V 7EX as its agent  for service of process in relation to any proceedings before the  English courts in connection with any Finance Document; and  37.2.1.2. agrees that failure by an agent for service of process to notify  the relevant Obligor of the process will not invalidate the  proceedings concerned.  37.2.2. The Original Lender and the Agent irrevocably appoints Standard Bank  Plc, 20 Gresham Street, London, EC2V 7JE as its agent for service of  process in relation to any proceedings before the English courts in  connection with any Finance Document.  This Agreement is effective from the Effective Date.    





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version      Schedule 1   THE ORIGINAL PARTIES  PART I  THE OBLIGORS    Name of Borrowers    Registration number (or equivalent, if any)  Abosso Goldfields Limited   CS592552015  Gold Fields Ghana Limited   CS592542015    Name of Original Guarantors   Registration number (or equivalent, if any)  Abosso Goldfields Limited   CS592552015  Gold Fields Ghana Limited   CS592542015    #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 2  Execution Version      PART II  THE ORIGINAL LENDER  Name of Original Lender Facility US$ Commitment Total US$ Commitment  The Standard Bank of South  Africa Limited (acting through  its Isle of Man branch)  100 000 000 100 000 000        #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version        Schedule 2   CONDITIONS PRECEDENT  PART 1  CONDITIONS PRECEDENT TO INITIAL UTILISATION  1. Obligors  1.1. Certified copies of the constitutional documents of each Obligor.  1.2. A copy of a resolution of the board of directors of each Obligor:  1.2.1. approving the terms of, and the transactions contemplated by, the Finance  Documents to which it is a party and resolving that it executes the Finance  Documents to which it is a party;  1.2.2. authorising a specified person or persons to execute the Finance  Documents to which it is a party on its behalf; and  1.2.3. authorising a specified person or persons, on its behalf, to sign and/or  dispatch all documents and notices (including, if relevant, any Utilisation  Request) to be signed and/or dispatched by it under or in connection with  the Finance Documents to which it is a party.  1.3. A specimen of the signature of each person authorised by the resolution referred to in  clause 1.2 above.  2. Legal opinions  2.1. A legal opinion of Bowman Gilfillan Inc., legal advisers to the Agent as to English law,  substantially in the form distributed to The Standard Bank of South Africa Limited  (acting through its Corporate and Investment Banking Division) prior to signing the  Original Facility Agreement.  2.2. A legal opinion of Oxford and Beaumont Solicitors, legal advisers to the Agent as to  Ghanaian law, substantially in the form distributed to The Standard Bank of South  Africa Limited (acting through its Corporate and Investment Banking Division) prior to  signing the Original Facility Agreement.  3. Other documents and evidence  3.1. Duly executed certified copies of all of the Finance Documents.  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 2  Execution Version      3.2. Evidence that any agent for service of process referred to in clause 37.2 (Service of  process) has accepted its appointment.  3.3. The latest audited consolidated financial statements of each Obligor.  3.4. A copy of any authorisation or consent (to include any relevant corporate, regulatory  and shareholder consent) which the Agent considers to be necessary or desirable in  connection with the entry into and performance of the transactions contemplated by  this Agreement or for the validity and enforceability of any Finance Document.  3.5. All documentation and information required by The Standard Bank of South Africa  Limited (acting through its Corporate and Investment Banking Division) in relation to  each Obligor to enable it to comply with is "know your customer" procedures.  3.6. A certificate from the Chief Financial Officer of each Borrower, certifying that such  Borrower has no subsidiaries on the Signing Date.  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 3  Execution Version      Part II  CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL GUARANTOR  1. An Accession Letter, duly executed by the Additional Guarantor and the Borrowers.  2. Certified copies of the constitutional documents of the Additional Guarantor.  3. A copy of a resolution of the board of directors of the Additional Guarantor:  3.1. approving the terms of, and the transactions contemplated by, the Accession Letter  and the Finance Documents and resolving that it execute the Accession Letter;  3.2. authorising a specified person or persons to execute the Accession Letter on its behalf;  and  3.3. authorising a specified person or persons, on its behalf, to sign and/or dispatch all other  documents and notices to be signed and/or despatched by it under or in connection  with  3.4. the Finance Documents.  4. A specimen of the signature of each person authorised by the resolution referred to in clause 3  above.  5. A copy of a resolution signed by all the holders of the issued shares of the Additional Guarantor,  approving the terms of, and the transactions contemplated by, the Finance Documents to which  the Additional Guarantor is a party.  6. A certificate of an authorised signatory of the Additional Guarantor certifying that each copy  document listed in this Part II of Schedule 2 is correct, complete and in full force and effect as  at a date no earlier than the date of the Accession Letter.  7. A copy of any other Authorisation or other document, opinion or assurance which the Agent  considers to be necessary or desirable in connection with the entry into and performance of the  transactions contemplated by the Accession Letter or for the validity and enforceability of any  Finance Document.  8. If available, the latest audited financial statements of the Additional Guarantor.  9. If the Additional Guarantor is incorporated in a jurisdiction other than England and Wales,  evidence that the agent for service of process specified in clause 37.2 (Service of process) has  accepted its appointment in relation to the proposed Additional Guarantor. #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version        Schedule 3   UTILISATION REQUEST  From: Gold Fields Ghana Limited / Abosso Goldfields Limited  To:  The Standard Bank of South Africa Limited (acting through its Isle of Man branch)1  Dated: []  Dear Sirs  Gold Fields Ghana Limited, Abosso Goldfields Limited - US$100 000 000 Revolving Credit  Facility originally dated 22 December 2010, as amended by the 2014 Amendment and  Restatement Agreement, the 2016 Amendment and Restatement Agreement, the 2017  Amendment and Restatement Agreement, the 2018 Amendment and Restatement Agreement  (First), the 2018 Amendment and Restatement Agreement (Second) and the 2021 Amendment  and Restatement Agreement dated [**********] 2021 (the "Agreement")  1. We refer to the Agreement. This is an Utilisation Request. Terms defined in the Agreement  have the same meaning in this Utilisation Request unless given a different meaning in this  Utilisation Request.  2. We wish to borrow a Loan on the following terms:  Proposed Utilisation Date: [] (or, if that is not a Business Day, the next Business Day)  Currency of Loan:  Dollars  Amount:   []  Interest Period:   []  3. We confirm that each condition specified in clause 4.4 (Further conditions precedent) is  satisfied on the date of this Utilisation Request.  4. The proceeds of this Loan should be credited to [account].  5. This Utilisation Request is irrevocable.                                                           1 If the Agent Appointment Date has occurred, to be addressed to THE STANDARD BANK OF SOUTH  AFRICA LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION).  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 2  Execution Version        Yours faithfully      ________________________________  authorised signatory for  Gold Fields Ghana Limited      ________________________________  authorised signatory for  Abosso Goldfields Limited    #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version        Schedule 4   FORM OF TRANSFER CERTIFICATE  To: The Standard Bank of South Africa Limited (acting through its Corporate and Investment  Banking Division) as Agent  From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")   Dated: []  Gold Fields Ghana Limited, Abosso Goldfields Limited - US$100 000 000 Revolving Credit  Facility originally dated 22 December 2010, as amended by the 2014 Amendment and  Restatement Agreement, the 2016 Amendment and Restatement Agreement, the 2017  Amendment and Restatement Agreement, the 2018 Amendment and Restatement Agreement  (First), the 2018 Amendment and Restatement Agreement (Second) and the 2021 Amendment  and Restatement Agreement dated [**********] 2021 (the "Agreement")  1. We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have  the same meaning in this Transfer Certificate unless given a different meaning in this Transfer  Certificate.  2. We refer to clause 23.4 (Procedure for transfer):  2.1. The Existing Lender and the New Lender agree to the Existing Lender transferring to  the New Lender by novation all or part of the Existing Lender’s Commitment, rights and  obligations referred to in the Schedule in accordance with clause 23.4 (Procedure for  transfer).  2.2. The proposed Transfer Date is [].  2.3. The Facilities Office and address and attention details for notices of the New Lender  for the purposes of clause 30.2 (Addresses) are set out in the Schedule.  3. The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations  set out in clause 23.3.3 (Limitation of responsibility of Existing Lenders).  4. This Transfer Certificate may be executed in any number of counterparts and this has the same  effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.  5. This Transfer Certificate is governed by English law.    





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version      THE SCHEDULE  COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED  [insert relevant details]  [Facility Office address and attention details for notices and account details for payments,]    [Existing Lender]     [New Lender]  By:       By:    This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as []. []    By:    #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version    Schedule 5   FORM OF ACCESSION LETTER  To: The Standard Bank of South Africa Limited (acting through its Isle of Man branch)2    From:  []  Dated: []    Dear Sirs  Gold Fields Ghana Limited, Abosso Goldfields Limited - US$100 000 000 Revolving Credit  Facility originally dated 22 December 2010, as amended by the 2014 Amendment and  Restatement Agreement, the 2016 Amendment and Restatement Agreement, the 2017  Amendment and Restatement Agreement, the 2018 Amendment and Restatement Agreement  (First),the 2018 Amendment and Restatement Agreement (Second) and the 2021 Amendment  and Restatement Agreement dated [**********] 2021 (the "Agreement")  1. We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have  the same meaning in this Accession Letter unless given a different meaning in this Accession  Letter.  2. [Subsidiary] agrees to become an Additional Guarantor and to be bound by the terms of the  Agreement as an Additional Guarantor pursuant to clause 24.2 (Additional Guarantors) of the  Agreement. [Subsidiary] is a wholly owned Subsidiary of the Borrower duly incorporated under  the laws of [name of relevant jurisdiction].  3. [Specify purpose of the Loan].  4. [Subsidiary’s] administrative details are as follows:  Address: []  Attention: []                                                        2 If the Agent Appointment Date has occurred, to be addressed to THE STANDARD BANK OF SOUTH  AFRICA LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION),  as Agent  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 2  Execution Version      5. This Accession Letter is governed by English law.      []     []  By:     By:    #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version      Schedule 6   FORM OF RESIGNATION LETTER  To: The Standard Bank of South Africa Limited (acting through its Isle of Man branch)3    From: [Resigning Obligor] and []  Dated: []  Dear Sirs  Gold Fields Ghana Limited, Abosso Goldfields Limited - US$100 000 000 Revolving Credit  Facility originally dated 22 December 2010, as amended by the 2014 Amendment and  Restatement Agreement, the 2016 Amendment and Restatement Agreement, the 2017  Amendment and Restatement Agreement,   the 2018 Amendment and Restatement Agreement  (First),the 2018 Amendment and Restatement Agreement (Second) and the 2021 Amendment  and Restatement Agreement dated [**********] 2021 (the "Agreement")    1. We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have  the same meaning in this Resignation Letter unless given a different meaning in this Accession  Letter.  2. Pursuant to clause 24.4 (Resignation of an Additional Guarantor), we request that [resigning  Obligor] be released from its obligations as a Guarantor under the Agreement.  3. We confirm that no default is continuing or would result from the acceptance of this request.  4. This Resignation Letter is governed by English law.    []      []  By:      By:                                                          3 If the Agent Appointment Date has occurred, to be addressed to THE STANDARD BANK OF SOUTH  AFRICA LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION),  as Agent  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version    Schedule 7   FORM OF COMPLIANCE CERTIFICATE  To: The Standard Bank of South Africa Limited (acting through its Isle of Man branch)4    From: [] [Insert name of Obligor]  Dated: []   Dear Sirs  Gold Fields Ghana Limited, Abosso Goldfields Limited - US$100 000 000 Revolving Credit  Facility originally dated 22 December 2010, as amended by the 2014 Amendment and  Restatement Agreement, the 2016 Amendment and Restatement Agreement, the 2017  Amendment and Restatement Agreement, the 2018 Amendment and Restatement Agreement  (First),the 2018 Amendment and Restatement Agreement (Second) and the 2021 Amendment  and Restatement Agreement dated [**********] 2021 (the "Agreement")  1. We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement  have the same meaning when used in this Compliance Certificate unless given a different  meaning in this Compliance Certificate.  2. We confirm that as at []:  2.1. the ratio of Consolidated EBITDA to Consolidated Net Finance Charges in respect of  the Measurement Period ending on [] was: []; and  2.2. the ratio of Consolidated Net Borrowings to Consolidated EBITDA in respect of the  Measurement Period ending on [] was: [],  and attach calculations showing how these figures were calculated.  3. We confirm that no Default is continuing.                                                          4 If the Agent Appointment Date has occurred, to be addressed to THE STANDARD BANK OF SOUTH  AFRICA LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION).  #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 2  Execution Version      Signed:    ________________________________   ________________________________  Director       Director  Of       Of  []       []  [insert applicable certification language]  [or and on behalf of [name of auditors of []    Signed:     ________________________________   ________________________________  Director       Director  Of       Of  []]       []  [insert applicable certification language]  [or and on behalf of [name of auditors of []      #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version      Schedule 8   TIMETABLE  *  "U" = the date of utilisation  "U – X" = X Business Days prior to date of Utilisation    Delivery of a duly completed Utilisation Request (clause 5.1)  (Delivery of a Utilisation Request)  U-3*  10.00a.m.  Agent notifies the Lenders of the Loan in accordance with clause 5.4  (Lender's participation)  U-3*  3.00p.m.  LIBOR is fixed (London time) U-2**  11.00a.m.    * provided that, in respect of the first Utilisation only, the Specified Time shall be U-2   ** provided that, in respect of the first Utilisation only, the Specified Time shall be U-1      #3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement  Execution Version    Schedule 9   PERMITTED TRANSFEREES  First Rand Limited  RMB  Nedbank  ABSA  The Standard Bank of South Africa Limited  Royal Bank of Scotland  Standard Chartered Bank  JP Morgan  Goldman Sachs  Lloyds  Barclays  Omsfin  Libfin  Industrial and Commercial Bank of China  Bank of China  China Construction Bank  Bank of Taiwan  Bank of America Merrill Lynch  HSBC  Citibank  Calyon (Credit Agricole Corporate and Investment Bank)  Commerze  





 






#3278862v1<ENS> - G1 Sixth Amended and Restated Facility Agreement 2  Execution Version      Sumitomo Mitsubishi Banking Corporation  Deutsche Bank  Natixis  Bank of Tokyo Mitsubishi - UFJ  Any affiliates, subsidiaries or holding companies of, or any bona fide and established trust or fund or  other entity which is regularly engaged in or established for the purposes of making, purchasing or  investing in loans, securities or other financial assets managed by, any of the banks or financial  institutions listed above that are not hedge funds.